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CONSTITUTIONAL CONVENTIONS 
THEIR NATURE, POWERS, AND LIMITATIONS 



CONSTITUTIONAL 

CONVENTIONS 

THEIR NATURE, POWERS, AND LIMITATIONS 

BY 

ROGER SHERMAN HOAR,''A.B., LL.B. 

FORMER STATE SENATOR AND ASSISTANT ATTORNEY GENERAL 

MEMBER OF THE COMMISSION TO COMPILE INFORMATION AND DATA 

FOR THE USE OP THE MASSACHUSETTS CONVENTION 

OF 1917 



* A frequent recurrence to fundamental principles 
is absolutely necessary, to preserve the blessings 
of liberty." 



N ON-REFER T 




cQVsrVAD'QHS 



BOSTON 

LITTLE, BROWN, AND COMPANY 

1917 



Un^t* 



; I 



J K3cDl 



Copyright, 1917, 
By Little, Brown, and Company. 



All rights reserved. 
Published, June, 1917 






22 ml 



B. J. Pabkhul & Co., Boston, U.S.A. 



©GI.A46v'533 "^ A 



TO 
ELVA STUART HOAR 



PREFACE 

The impendency of constitutional conventions in Illinois, 
Indiana, Massachusetts, Nebraska and New Hampshire, has 
stirred up a vast amount of legal and lay discussion as to the 
nature and powers of such bodies. The Illinois, Nebraska and 
New Hampshire conventions are expressly authorized by the 
constitutions of those States. But the Indiana and Massachu- 
setts conventions, not being so authorized, are generally re- 
garded as being revolutionary, and are considered by many to 
be wholly unconstitutional and void. 

Where can one turn for authoritative information on these 
questions? The only treatise exclusively on Constitutional Con- 
ventions is the one by Judge Jameson, published in 1867, and 
to some extent revised in 1887. Even in its day, this book was 
rendered less valuable by the fact that it was written to support 
a preconceived theory, in the interests of which theory Judge 
Jameson freely distorted both law and facts.^ To-day this book 
is obsolete (most of the judicial decisions on the subject being 
since 1887), and is out of print. 

The fact that there is no modern or even ancient accessible 
work on the nature and powers of constitutional conventions, 
has led me to attempt to fill the gap with the present book, which 
represents no preconceived theory, but rather merely an im- 
partial collection of all the available law and precedent. 

' "Judge Jameson's work constructed a theory regarding constitutional con- 
ventions, which conformed more or less closely to the facts, but in which the 
facts were subordinated to the theory." Dodd, p. vi. But Jameson, speaking 
from the grave as it were, in reply to Dodd and the present author, says: "which, 
in substance, is an intimation that this work is what the Germans call a 
tendenz work, written to maintain a particular thesis, the subordination of the 
Constitutional Convention to the law of the land. . . . what work upon history 
or constitutional law was ever written which was not a tendenz work in the 
same sense; that is, written from some special point of view to establish truths, 
of which the author is strongly convinced, and to refute errors deemed danger- 
ous, and, if not combatted, likely to prevail? " Jameson, pp. 656-657. 



Vlll PREFACE 

The best modern treatment of the subject is contained in 
Dodd's "Revision and Amendment of State Constitutions" 
(1910), which however is written more from an historical than 
from a legal point of view, and which deals chiefly with meth- 
ods of constitutional amendment, other than the convention 
method. I am greatly indebted to this work. Jameson's book 
also has been constantly before me, and much that is still valu- 
able therein has been used. 

But, in the main, I have consulted original sources themselves, 
rather than any author's interpretation of them. For the texts 
of the various constitutions themselves, I have used Thorp's 
compilation which was published by Congress in 1909. 

My two colleagues on the Commission to Compile Material 
for the Massachusetts Convention of 1917, namely. Professor 
William B. Munro^ of Harvard University and Lawrence 
B. Evans, Esq.,^ of the Boston Bar, also Honorable Robert 
Luce^ and my wife, have very kindly read my manuscript and 
have aided me with many valuable suggestions. 

RoGEK Sherman Hoar. 

May 1, 1917. 

^ Head of the department of government at Harvard; author of several well 
known works on Canadian and Municipal Government. 

2 Author of " Leading Cases on American Constitutional Law," and other 
legal and historical works. 

* Creator of the Massachusetts direct primary system. Former Lieutenant 
Governor of Massachusetts. 



TABLE OF CONTENTS 

PAGE 

List of Cases Cited xiii 

References xvii 



CHAPTER I 
The Origin of Conventions [1 

The four sources of the American theory of constitutions; the first 
American constitutions; the birth of the convention idea (Massa- 
chusetts, New Hampshire, and Federal) ; provisions for amendment 
in eariy constitutions; the development of the three methods now 
in use. 

CHAPTER n 

Fundamental Principles 11 

Popular sovereignty; representative government; delegated powers; 
the right to change government; three methods of exercising this 
right; the electorate as a representative body; factional conventions; 
ingenious theories as to who are the people; classes of constitutional 
cases; a "state of nature." 



CHAPTER in 

Analysis of Questions 30 

The meaning of "constitutional"; other definitions; the three classes 
of conventions; authorized conventions; popular conventions; 
spontaneous conventions; the nature of conventions; the relative 
powers of departments of government; a forecast of this book. 

CHAPTER IV 
Popular Conventions are Legal 38 

The status of conventions, when not mentioned in the Constitution; 
instances in which they have been held; the Rhode Island doctrine; 
Attwill's theory; the Massachusetts theory; conventions valid even 
though expressly prohibited; perhaps popular in nature even when 
expressly authorized; the extraconstitutional nature of conventions. 



TABLE OF CONTENTS 



CHAPTER V 

FAOB 

Who Calls the Convention? 58 

Who enacts the convention act; under the Initiative; when authorized 
by the constitution; when the legislature calls an unauthorized con- 
vention; when the legislature submits the question to the people; 
even when the people merely elect the delegates; legislative stat- 
ute; the need of legislative assistance; the desirability of dispensing 
with it. 

CHAPTER VI 

Legislatures as Conventions 79 

In Indiana they cannot so act; in North Dakota they can; comparison 
of the two views. 

CHAPTER Vn 
Executive Intervention 89 

The convention a fourth branch of the government; interference by 
State executive veto in constitutional cases; in extraconstitutional 
cases; by Federal executive; intervention to suppress; intervention 
to assist; executive recognition; interference with pending conven- 
tion. 

CHAPTER VIII 

The Convention Act not Amendable 97 

Questions involved; the vaUdity of the legislation; who enacted the 
convention act; if the legislature enacted, they can amend it; if the 
people enacted, the legislature cannot amend it; but legislatures 
have done so on occasions. 



CHAPTER IX 

Legislative Control 105 

Five methods of control; depends on who passed the act; cross-refer- 
ences on powers of the convention; probably no right to restrict; 
instances of successful restriction; instances of unsuccessful restric- 
tion; the doctrine of reasonable restrictions; abolition of the con- 
vention; indirect interference; recognition and non-recognition. 



CHAPTER X 
Popular Control 120 

Depends on who passed the act; the people can control; the people can 
amend, if they passed the act; if the legislature passed the act; in 
cases of doubt; abolition of the convention; instructions to delegates. 



TABLE OF CONTENTS XI 



CHAPTER XI 

PAGE 

Extraordinary Powers Claimed 128 

Convention sovereignty; certain conventions not precedents; inter- 
ference with the executive; power to legislate; legislation under the 
guise of constitutional amendment; submission of legislation to the 
people; incidental legislative powers; powers granted by United 
States Constitution to legislatures; complete usurpation of powers. 



CHAPTER XII 

Judicial Intervention 149 

In proceedings under constitution; in extraconstitutional proceedings; 
when still pending; when completed; internal convention affairs; 
a poUtical rather than judicial question; interference with usurped 
powers; judicial assistance; judicial advice. 

CHAPTER XIII 

Does the Constitution Apply? 165 

Cannot prevent the convention; constitutional provisions directory; 
mandatory if adopted by the people; constitution not appUcable 
even to constitutional proceedings; Federal Constitution applicable. 



CHAPTER XIV 

Internal Procedure 170 

Judge of own elections; filling vacancies; expulsion of members; hall; 
officers; rules; committees; suppUes; records; printing; mainte- 
nance of order; binding the State's credit; reconvening to codify the 
amended constitution. 



CHAPTER XV 

Status of Delegates 185 

Are they pubUc officers? precedents on oaths; anomaly of oath of mem- 
bers; of assisting officers; privileges and immunities of individual 
delegates. 

CHAPTER XVI 

Submission op Amendments 193 

History; necessity when required by constitution; when required by 
act; when not required; can legislature change time? can convention 
change time? separate submission; enlarged or reduced electorate; 
methods of submission. 



XU TABLE OF CONTENTS 



CHAPTER XVII 

FAQB 

The Doctrine of Acquiescence 214 

Lapse of time; government acquiescence; popular acquiescence; in 
constitutional cases; in extraconstitutional cases; does not validate 
the means. 



CHAPTER XVIII 

Conclusions 220 

History; fundamentals; legality and source of conventions; amending 
the convention act; executive intervention; control of the conven- 
tion; convention sovereignty; judicial intervention; the constitu- 
tion; conduct of the convention; consent of the governed. 

INDEX 232 



LIST OF CASES CITED 

A. 

PAGE 

Armstrong w. Berkey, 23 Okla. 176 149 

Atty. Gen. v. Tillinghast, 203 Mass. 539 187 

B. 

Birmingham Ry., Ex parte, 145 Ala. 514 122, 129, 141, 145 

Bott V. Secy, of State, 62 N. J. L. 107 206, 218 

Bradford v. Shine, 13 Fla. 393 52, 131, 144 

Bragg V. Tuffts, 49 Ark. 554 142 

Brittle v. People, 2 Neb. 198 79, 158, 215 



C. 

Carton v. Secy, of State, 151 Mich. 337 . 63, 90, 92, 107, 112, 134, 163, 198 

Chicago V. Reeves, 220 111. 274 83 

Collier v. Frierson, 24 Ala. 100 40, 150, 151 

Commonwealth v. Griest, 196 Pa. 396 81 

Commonwealth v. Kimball, 24 Pick. 359 25 

Cranmer v. Thorson, 9 S. D. 149 153 

Cummings v. Missouri, 4 Wall. 277 207 



D. 

Denny, Re, 156 Ind. 104 150 

Duncan, i2e, 139 U. S. 449 25 

Durfee v. Harper, 22 Mont. 354 149 



E. 

Ellingham v. Dye, 178 Ind. 336 . . 14, 42, 48, 64, 68, 74, 80-85, 87, 129 



Foley V. Dem. Com., 70 So. 104 162, 218 

Franz v. Autry, 18 Okla. 561 142, 152, 153 



LIST OF CASES CITED 



G. 

PAGE 

Gibbes v. Railroad, 13 S. C. 228 141, 145 

Goodrich v. Moore, 2 Minn. 61 23, 179 

Green v. Shumway, 39 N. Y. 418 205 

Grigsby v. Peak, 57 Tex. 142 146 

H. 

Hatch V. Stoneman, 66 Cal. 632 150 

Holmberg v. Jones, 7 Ida. 752 149 

K. 

Kamper v. Hawkins, 3 Va. 20 3, 27, 28, 39, 56 

Knight V. Shelton, 134 Fed. 423 161 

Koehler v. Hill, 60 la. 543 149, 157, 158, 215 

L. 

La. Ry. v. Madere, 124 La. 635 122, 124, 190 

Linde v. Robinson, 160 N. W. 512 215 

Livermore y. Waite, 102 Cal. 113 83,84,150 

Loomis V. Jackson, 6 W. Va. 613 69, 158, 215 

Luther v. Borden, 7 How. 1 94, 101, 157, 158, 162, 215 

M. 

McBee v. Brady, 15 Ida. 761 149 

McConaughty v. Secy, of State, 106 Minn. 392 149 

McCready v. Hunt, 2 Hill Law 1 . 12, 63, 72, 121, 124, 135, 136, 137, 160 

McCuUoch V. Maryland, 4 Wheat. 316 39 

McMuUen v. Hodge, 5 Tex. 34 133 

Miller v. Johnson, 92 Ky. 689 112, 156, 183, 195, 215 

N. 
Nesbit V. People, 19 Col. 441 214 

O. 

Opinion of Mass. Justices, 1917 50, 66, 99, 164, 167 

Opinion of N. Y. Justices, unreported 56,99,116,164 

Opinion of Justices, 3 Pick. 517 172 

Opinion of Justices, 6 Cush. 573 . 44, 45, 46, 64, 123, 164, 198, 199, 217 
Opinion of Justices, 115 Mass. 602 209 



LIST OF CASES CITED XV 

FAGB 

Opinion of Justices, 136 Mass. 578 , . . . . 209 

Opinion of Justices, 160 Mass. 586 64 

Opinion of Justices, 76 N. H. 586 33, 164 

Opinion of Justices, 76 N. H. 612 138, 164, 197 

Opinion of Justices, 14 R. I. 649 .. . 15, 33, 43, 46, 47, 49, 56, 57, 198 

P. 

Pac. States Tel. Co. v. Oregon, 223 U. S. 118 119, 162, 169 

Paving Co. v. Hilton, 69 Cal. 479 . . . . ' 149 

Paving Co. v. Tompkins, 72 Cal. 5 149 

People V. Curry, 130 Cal. 82 149 

People V. Loomis, 135 Mich. 556 149 

People V. Militzer, 272 111. 387 210 

People V. Strother, 67 Cal. 624 149 

Plowman v. Thornton, 52 Ala. 559 141 

Q. 
Quinlan v. Houston Ry. Co., 89 Tex. 356 144, 145, 146 



R. 

Reliance v. Prison Com., 161 Ky. 135 12 

Richards v. Whisman, 36 S. D. 260 100 

Ridley v. Sherbrook, 43 Tenn. 569 94 

S. 

Schertz v. Bank, 47 III. App. 124 143 

Scown V. Czarnecki, 264 111. 305 210 

Senate File, Re, 25 Neb. 864 149 

Smith V. Good, 34 Fed. 204 161 

Sproule V. Fredericks, 69 Miss. 898 90, 134 

State V. Am. Sugar Co., 137 La. 407 40, 65, 68, 70, 123, 167 

State V. Brookhart, 113 la. 250 149 

State V. Brooks, 17 Wyo. 344 150 

State V. Capdevielle, 104 La. 561 70, 122 

State V. Cox, 3 Eng. 436 82 

State V. Dahl, 6 N. D. 81 40, 48, 63, 67, 87, 93, 163 

State V. Davis, 20 Nev. 220 149 

State V. Favre, 51 La. Ann. 434 73, 167 

State V. Neal, 42 Mo. 119 146, 207 

State V. Powell, 77 Miss. 543 149 

State V. Swift, 69 Ind. 505 149 

State V. Tooker, 15 Mont. 8 149 

State V. Tufly, 19 Nev. 391 149 



XVI LIST OF CASES CITED 



T. 

PAGE 

Taylor v. Beckham, 178 U. S. 548 25 

Taylor v. Commonwealth, 101 Va. 829 ... . 104, 112, 156, 199, 215 
Thomasson v. Ruggles, 69 Cal. 465 149 

WeUs V. Bain, 75 Pa. 39 . . 16, 17, 19, 24, 28, 32, 72, 74, 75, 76, 90, 109, 

117, 136, 137, 152, 160, 165, 170, 195, 213 

Weston V. Ryan, 70 Neb. 211 214 

Williams v. Suffolk Ins. Co., 3 Sunmer 220 157 

Wood's Appeal, 75 Pa. 59 . . 19, 73, 110, 111, 121, 124, 129, 136, 152, 155, 

159, 162 
Woods V. Woburn, 220 Mass. 416 210 

Young V. Duncan, 218 Mass. 346 210 



REFERENCES 

"Columbia Dig."; "Index-Digest of State Constitutions." Prepared 
by Columbia University, and published by the New York Con- 
stitutional Convention Commission, 1915. 

Dodd: "The Revision and Amendment of State Constitutions." Wal- 
ter Fairleigh Dodd. Johns Hopkins Press, Baltimore, 1910. 

Holcombe: "State Government in the United States." Arthur Norman 
Holcombe. Macmillan Co., 1916. 

Jameson: "Constitutional Conventions." John Alexander Jameson. 
Fourth edition. Callaghan & Co., Chicago, 1887. 

"N. Y. Revision of Consts."; "Revision of the State Constitution." 
Published by the New York Constitutional Convention Com- 
mission, 1915. 

Thorpe: "Federal and State Constitutions." Francis Newton Thorpe. 
7 vols. Government Printing Office, Washington, 1909. 

" Trial of Dorr " ; "Trial of Thomas Wilson Dorr for Treason." George 
Turner and W. S. Burges. B. F. Moore, Printer, Providence, 1844. 



CONSTITUTIONAL CONVENTIONS 

Chapter I 
THE ORIGIN OF CONVENTIONS 

Constitutional conventions, as a means of amending written 
constitutions, are distinctly an American institution. In fact, 
written constitutions themselves originated in this country. 

The idea of a constitution is Anglo-Saxon. The word is used 
on both sides of the Atlantic to signify something superior to 
legislative enactments; in other words, a body of fundamental 
principles of government which are beyond the control of the 
Legislature. 

A constitution is a social compact, by which the whole people 
covenants with each citizen, and each citizen with the whole 
people, that all shall be governed by certain laws for the common 
good.^ In other words, it is the Anglo-Saxon theory that gov- 
ernment is in some way based upon a contract between the 
people and the State. 

The American colonies, however, were bound not only by 
the terms of the unwritten British constitution, but more di- 
rectly by the charters or other written instruments whereby 
Great Britain directed their government. These charters, of 
course, became suspended the moment the colonies declared 
their independence, as did also the operation on the colonies 
of even the British constitution itself. As it has sometimes been 
expressed, the colonies reverted to a state of nature.^ 

It was inevitable that in their attempts to emerge from this 
state of nature and organize a new social contract, each colony 
should make its contract embody the fundamental principles of 
the British constitution, and that they should promulgate these 
contracts in written form, like their former charters. Several 

* Mass. Const., Preamble. ^ Qqq pp, 2&-28, infra. 



2 CONSTITUTIONAL CONVENTIONS 

of the colonies, in fact, re-adopted their charters to serve them 
as constitutions.^ 

The poKtical experience and theories of the colonists thus 
suppHed four principles: (1) The employment of definite written 
instruments, prescribing the nature and form of government; 

(2) the idea of a constitution superior to ordinary legislation; 

(3) the conception of certain natural rights asserted by such a 
constitution; and (4) the theory of the social contract. The 
written constitution, born in America, was the embodiment of 
these four principles.^ 

The constitutional convention, as we know it to-day, also 
developed in America. It is true that governments had in the 
past been changed by conventions {i.e. comings-together), 
but these had always been unrepresentative and spontaneous. 
As Braxton says: 

The first and crudest conventions were in no sense representa- 
tive bodies; but were mere voluntary, irregular, illegitimate as- 
semblies of individuals, acting on their own motion and on their 
\ own behalf, who felt themselves sufficiently powerful to resort to 
the ultimate right of Revolution, and wrest, by violence, from their 
sovereigns, such governmental concessions as they desired. The 
existence of such bodies was neither provided for, nor recognized by, 
the laws or existing social system. They relied merely on the right 
of vis major to justify their actions and support their demands. 
Such was the Convention of the Barons at Runnymede in 1215, 
that framed, and, in a sense, enacted. Magna Charta, the first 
faint suggestion in England of a written constitution.* 

But in America the representative convention developed. It 
was a step as far beyond Runnymede as our constitutions were 
beyond Magna Charta. 

The first American constitutions originated in a variety of 
ways. In order to understand the foundation upon which each 
rested, it will be necessary to consider: first, the origin of the 
Revolutionary legislative body in each of the thirteen States; 
and secondly, the method in which each constitution was en- 
acted. Only three States went through the form of continuing 

* Massachusetts until 1780; Connecticut until 1818; Rhode Island until 
1842. 

2 Dodd, pp. 2-3. 

8 A. Caperton Braxton in VII " Va. Law Reg.," 79, 82. 



THE ORIGIN OF CONVENTIONS 3 

the charter legislature, to wit: Delaware, Connecticut, and 
Rhode Island.^ 

Massachusetts is usually incorrectly classified as being among 
this number, owing to a failure to appreciate that the Provincial 
Congress of 1774 was not a continuation of the General Court of 
the preceding June.^ 

Similarly with Virginia. We learn from a decision of her own 
Supreme Court that the Revolutionary government was not a 
continuation of the House of Burgesses.^ The rest of the States 
held unauthorized elections with little or no pretense at legality.* 

In nearly all of the States, certain more or less voluntary 
organizations, called committees of safety, shared the govern- 
ing power.^ 

The dissolution of the constitutional assemblies, by the govern- 
ors appointed by the crown, obliged the people to resort to other 
methods of deliberating for the common good. Hence the first 
introduction of convention: bodies neither authorized by, or known 
to the then constitutional government; bodies, on the contrary, 
which the constitutional ofiieers of the then existing governments 
considered as illegal, and treated as such. Nevertheless, they met, 
deliberated, and resolved for the common good. They were the 
people, assembled by their deputies; not a legal, or constitutional 
assembly, or part of the government as then organized. . . . They 
were, in effect, the people themselves, assembled by their dele- 
gates, to whom the care of the commonwealth was especially, as 
well as unboundedly confided.^ 

Regardless of the legality or illegality of the inception of 
these various governing bodies, they become, by virtue of mili- 
tary force and of popular acquiescence,^ the de facto govern- 
ments of their respective States. 

Let us now consider the methods in which these de facto 
governments brought about the establishment of written con- 
stitutions.^ 

' Dodd, p. 14; Jameson, pp. 113 and 128-129. 

2 George Tolman, "Preliminaries of the Concord Fight" (1902), p. 6. 
» Kamper v. Hawkins (1793), 3 Va. 20, 68-74. 
* Jameson, pp. 113, 114 n. 1, 119, 122, 126, 130, 132-134. 
^ Jameson, p. 113. 

6 Kamper v. Hawkins (1793), 3 Va. 20, 68. 
' See Chapter XVII, infra. 

^ The following classification is based upon Dodd, pp. 24-25, with some 
regrouping, however, based upon an analysis of the full accounts. 



4 CONSTITUTIONAL CONVENTIONS 

In eight instances the legislative body adopted and pro- 
mulgated the constitution in the same manner in which it 
would have passed a mere statute, without either advance 
authority from, or ratification by, the people.^ 

In five instances the action was taken by a legislative body 
expressly authorized thereto by popular vote; but the con- 
stitution was not submitted in any manner to the people.^ 

In four instances the constitutions were enacted by the 
legislature under express authority from the people, and copies 
were distributed some time before enactment, in order to give 
the people an opportunity to object and suggest changes.^ 

In one instance, the legislature submitted a constitution to 
the people without previous authority, but it was rejected.^ 

The legislative bodies above referred to were in some cases 
legislatures attempting to frame constitutions, and in other 
cases conventions exercising legislative powers. The distinction 
is immaterial; they were the only regular legislative bodies of 
their respective States. 

In three instances, constitutions were framed by special 
conventions, separate from the regular legislative bodies, and 
were submitted to the people.^ These three conventions, 
together with the conventions which framed and adopted the 
Federal Constitution, mark the birth of the constitutional 
convention movement in this country, and accordingly deserve 
more than passing notice. 

In New Hampshire and Massachusetts, during the Revolu- 
tionary War period, there was developed the convention as we 
know it to-day; that is, an independent body for the sole pur- 
pose of framing a constitution, and submitting it to a vote of 
the people. But it should be remembered that before this 
development took place, both of these States had established 
fairly stable governments, New Hampshire by its constitution 

_ 1 North Carolina (April, 1776), South Carohna (1776), Georgia (1776), 
Virginia (1776), New Jersey (1776), and the continuation of the charters in 
Massachusetts, Rhode Island, and Connecticut. 

2 New Hampshire (1776), Delaware (1776), Georgia (1777), New York 
(1777), and Vermont (1777). Jameson (pp. 128-130) gives Delaware the credit 
of holding the first regular convention, but see Dodd, p. 15. 

* Maryland (1776), Pennsylvania (1776), North Carolina (Dec. 1776), and 
South CaroUna (1778). 

* Massachusetts (1778). 

6 New Hampshire (1778 and 1781-1783) and Massachusetts (1780). 



THE ORIGIN OF CONVENTIONS 5 

of 1776, and Massachusetts by an amended form of Its colony 
charter. In neither was there urgent need of a new govern- 
ment; in neither was there an aggressive Tory element. Neither 
of these States was threatened by military operations at the 
time. In neither State was there any danger to be apprehended 
from the creation of an independent convention and the sub- 
mission of its work to a vote of the people. 

The history of the development of the convention method 
in these two States was as follows. 

Massachusetts, unlike Rhode Island, which remained under 
its colony charter until 1842, was one of the earliest States to 
adopt an independent form of government. In the spring of 
1774, Governor Gage forcibly prorogued the Massachusetts 
legislature. The people promptly prepared to elect a pro- 
vincial congress of their own to take its place. To offset this 
move, Gage called for the election of a new legislature. The 
people elected practically the same delegates to both the 
provincial congress and the legislature, whereupon Gage can- 
celled his call. Nevertheless, the legislature met and adjourned 
over to merge with the congress. This congress and its successor, 
which sat for five months in 1775, reenacted the charter in a 
slightly amended form, which served Massachusetts as a con- 
stitution until 1780. Under it the Great and General Court 
(^. e. the legislature) and the Governor's Council were regu- 
larly elected as formerly, the latter exercising the executive 
powers. 

Soon after the Declaration of Independence, steps were 
taken in Massachusetts toward framing a new form of govern- 
ment. In accordance with a recommendation of the previous 
legislature, the two branches of the legislature of 1777-1778 
met together as a convention and submitted a constitution, 
which, however, was indignantly rejected by the electorate, 
because they resented the legislature's assumption that it 
could call a convention without first obtaining an authorization 
from the people. 

In the following year the chastened legislature called upon 
the voters to state whether they wished a constitution and 
whether they would authorize the legislature to call a con- 
vention. The vote on both questions was affirmative, and the 
legislature accordingly called the convention which drafted 



6 CONSTITUTIONAL CONVENTIONS 

the present Massachusetts constitution. This constitution was 
adopted in 1780.^ 

The experience of New Hampshire was very similar. In 
response to a recommendation by the Continental Congress, 
the provincial congress of New Hampshire adopted a tem- 
porary constitution on January 5, 1776, although in the face 
of strong protest from many parts of the State. The agita- 
tion in the western towns became so serious that it was neces- 
sary for the provincial congress to send a committee to assure 
that section that the form of government adopted was purely 
temporary. 

Delegates from certain of the towns met in Hanover in June, 

1777, and passed resolutions that any permanent plan of govern- 
ment should be framed by a convention convened solely for 
that purpose. Subsequent constitutional procedure in New 
Hampshire followed those suggested lines. 

The legislature of 1777 asked that the various representatives 
be instructed by their towns as to the expediency of holding 
a convention. Many of the members of the next legislature 
were so instructed, and accordingly it was voted in February, 

1778, that a convention be held in June of that year. The 
convention, called by virtue of this vote, drafted a constitution; 
but it was rejected by the people. 

This procedure was repeated in calling a second convention, 
which met in 1781 and submitted a constitution, which also 
was rejected. The same convention submitted a revised copy 
in 1782, and a second revision in 1783, which was finally 
adopted.^ 

As already said, it was the idea of a separate convention 
which defeated the constitution framed by the Massachusetts 
legislature in 1777-1778. As a recent writer has said: 

The material factor which defeated the constitution was the 
widespread belief that the only convention which could stand for 
all the people and best define its rights and determine its form 
of government, was a convention consisting of delegates to whom 
the powers of the people were delegated for the sole purpose of 

» George Tolman, " Preliminaries of the Concord Fight " (1902) ; 1917 Manual 
of the General Court (Mass.), pp- 86-87; Dodd, pp. 8-10; Frothingham, Const, 
and Govt, of Mass.; II "Mass. Law Quarterly," 1. 

2 Dodd, pp. 3-8. 



THE ORIGIN OF CONVENTIONS 7 

framing a constitution, and not a body of representatives entrusted 
at the same time with other duties.^ 

Dodd gives to the towns of the New Hampshire grants, 
meeting in Hanover in June, 1777, the credit of originating the 
convention idea.^ But to the town of Concord, Massachusetts, 
belongs the honor of antedating the towns of the New Hamp- 
shire grants. On October 21, 1776, the town voted on the 
question of authorizing the legislature to frame a constitution: 

That the Supreme Legislative, either in their proper capacity, 
or in Joint Committee, are by no means a body proper to form and 
establish a Constitution, or form of Government; for reasons fol- 
lowing : first, because we conceive that a Constitution in its proper 
idea intends a system of principles established to secure the subject, 
in the possession and enjoyment of their rights and privileges, 
against any encroachments of the governing part, second, because 
the same body that forms a constitution have of consequence a 
power to alter it, third, because a constitution alterable by the 
Supreme Legislative is no security at all to the subject against any 
encroachment of the governing part on any, or on all of their rights 
and privileges. 

Accordingly they recommended the calling of a convention.^ 

This procedure of constitution-framing by a convention 
chosen for that express purpose, which idea was originated in 
Concord, Massachusetts, and was copied by the New Hamp- 
shire towns, was also followed in Vermont in 1786, and with 
respect to the Federal Constitution. 

Jameson points out that the congress which framed the 
Articles of Confederation possessed not a single one of the 
elements necessary to give it legitimacy as a constitutional 
convention.^ The body which framed the permanent Constitu- 
tion of the United States was scarcely more legitimate. 

The Annapolis convention had met merely to settle the 
commercial disputes of the American States, but had recom- 
mended that the succeeding convention at Philadelphia should 

^ Arthur Lord in II "Mass. Law Quarterly," 1, 5; c/. Journal, Mass. Conv., 
1779-1780, p. 225. 

2 Dodd, p. 6. 

^ "Mass. Archives," Vol. 156, No. 182. A facsimile is to be printed in the 
manual of the Mass. 1917 Convention. 

* Jameson, pp. 147-148. 



8 CONSTITUTIONAL CONVENTIONS 

consider "other objects than those of commerce." Accord- 
ingly, a convention met in May, 1787, at Philadelphia, "to 
devise such fm-ther provisions as shall appear to them necessary 
to render the constitution of the Federal Government adequate 
to the exigencies of the Union," ^ This convention was really 
a diplomatic treaty-making body, rather than a constitutional 
convention in the purest sense of the term. 

But the conventions of the eleven States which ratified the 
Constitution were all regularly-called constitutional conven- 
tions. The same may be said of the conventions of North 
Carolina, Rhode ilsland, and Vermont, which ratified the 
Constitution after it was declared established.^ 

So much for the origin of the idea of a written constitution, 
and for the employment of conventions to draft these instru- 
ments. Let us now consider the growth of the idea of the 
convention as a method of amending or altering constitutions 
already established. 

The absence of any provision for alteration In the early 
constitutions should not be taken as an indication that their 
framers thought the regular legislatures competent to alter 
them, but rather that they did not consider the matter at all.^ 

Thus six of the early constitutions, and the rejected Massa- 
chusetts constitution of 1778, provided no method for their 
own amendment.^ 

Of the eight constitutions which did provide for amendment, 
three provided for legislative action (in a manner different and 
more difiicult, however, than the passage of a mere statute),^ 
two provided for submission by a council of censors for rati- 
fication by a specially called convention,® one provided for a 
convention called by petition,'' and one for a convention called 
by a popular vote at a certain fixed date.^ 

^ Jameson, pp. 149-150. ^ Jameson, p. 153. 

3 DoU, p. 27. 

« South Carolina (1776), Virginia (1776), New Jersey (1776), New Hamp- 
shire (1776), New York (1777), and North Carolina (Dec. 1776). 

6 Maryland (1776), Delaware (1776), and South Carolina (1778). 
« Pennsylvania (1776) and Vermont (1777). 

7 Georgia (1776). 

8 Massachusetts (1780). The vote was imfavorable, no convention was 
held, and thus this method lapsed by non-user. There was a similar provision 
in the Kentucky constitution of 1792, and under it was framed the constitution 
of 1799. 



THE ORIGIN OF CONVENTIONS t9 

The New Hampshire constitution of 1784 contained a similar 
provision, but with the added quahfication that the work of this 
convention should be submitted to the voters for their approval. 

But soon it became apparent that it would be convenient 
for each State to have two methods of changing its constitu- 
tions; although only four constitutions had, up to 1835, 
adopted both the legislative and convention methods.^ Up to 
1917, one hundred and thirty-nine constitutions have been 
framed by that many conventions. Of these, nine have con- 
tained no method of amendment, twenty-nine have contained 
provisions for amendment by convention alone, thirty-six by 
the legislative method alone, and sixty-five by both modes.^ 

In all of the States except New Hampshire, specific provision 
is now made for the amendment of State constitutions, by action 
by the legislature.^ 

In twelve States, the constitution may now be amended by 
popular initiative without the interposition of either the legis- 
lature or a convention.^ 

Only twelve of the State constitutions now in force omit to 
provide for the holding of constitutional conventions.^ Yet 
conventions have been held in all of these States except Rhode 
Island, Indiana, and Vermont. The question of holding a con- 
vention has twice been submitted in Rhode Island, in spite of a 
Supreme Court opinion declaring the convention method un- 
constitutional, and there have been authoritative expressions 
of opinion in Vermont and Indiana that a convention could be 
held there. ^ 

It may therefore be said that New Hampshire is the only state 
in which amendments may not be proposed by the legislature, and 
that Rhode Island is perhaps the only exception to the rule that 
conventions may be held for the revision of State constitutions.'^ 

1 United States (1787), South Carolina (1790), and Delaware (1792 and 
1831). 

2 Jameson, pp. 550-551; Bodd, pp. 119-120. Arizona and New Mexico in 
1910; Louisiana in 1913. 

^ "Columbia Dig.," pp. 10-21. 

* "Columbia Dig.," p. 771. These States are Arizona, Arkansas, California, 
Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Okla- 
homa, and Oregon. 

^ " Columbia Dig.," p. 21. These States are Arkansas, Connecticut, Indiana, 
Louisiana, Massachusetts, Mississippi, New Jersey, North Dakota, . Pennsyl- 
vania, Rhode Island, Texas, and Vermont. 

« See Chapter IV, infra. ^ Dodd, p. 120. 



10 CONSTITUTIONAL CONVENTIONS 

The Federal Constitution provides for the holding of a Fed- 
eral convention as an alternative to the usual method of sub- 
mission of amendments by Congress.^ 

Thus the convention method and the legislative method of 
amending constitutions have now become equally established 
throughout the length and breadth of the United States. 

1 U. S. Constitution, Art. V. 



Chapter II j 
FUNDAMENTAL PRINCIPLES 

In order to understand the nature, powers, and limitations of 
constitutional conventions, it will be necessary first to discuss 
a few fundamental principles of government; for the convention, 
designed as it is to tinker with such a basic instrument as the 
constitution, must of necessity get closer to fundamentals than 
any other governmental agency. 

Government in America is based upon popular sovereignty. 
The Federal Constitution was ordained and established by 
"the people of the United States," ^ and guarantees to each of 
the several States "a republican form of government." ^ This 
means, in other words, a representative form. 

It is founded upon the theory that the people are fit to rule, 
but that it would be cumbersome for them to govern themselves 
directly. Accordingly, for the facilitation of business, but for 
no other purpose, the people choose from their own number 
representatives to represent their point of view and to put into 
effect the collective will. 

As Jameson expresses it: 

Of the American system of government, the two leading princi- 
ples are, first, that laws and Constitutions can be rightfully formed 
and established only by the people over whom they are to be put in 
force; and, secondly, that the people being a corporate unit, com- 
prising all the citizens of the state, and, therefore, too unwieldy to 
do this important work directly, agents or representatives must be 
employed to do it, and that, in such numbers, so selected, and 
charged respectively with such functions, as to make it reasonably 
certain that the will of the people will be not only adequately but 
speedily executed.^ 

1 U. S. Const., Preamble. 

2 U. S. Const., Art. IV, § IV. 

3 Jameson, p. 1; "Works of Daniel Webster," VI, pp. 221-224. 



12 CONSTITUTIONAL CONVENTIONS 

These principles were recognized by our forefathers In fram- 
ing the various Bills of Rights, which declare in substance that, 
as all power resides originally in the people, and is derived from 
them, the several magistrates and officers of government are their 
substitutes and agents, and are at all times accountable to them.^ 

The various agents of the people possess only such power as is 
expressly or impliedly delegated to them by the constitution or 
laws under which they hold office; and do not possess even this, 
if it happen to be beyond the power of such constitution or laws 
to grant. 

As the Supreme Court of South Carolina said in an early 
decision: 

Whatever authority this Court or any other constituted author- 
ity in this State possesses, it possesses by delegation from the 
people, and is exercised in their right. What they have failed to 
delegate, even if it operates injuriously and in bad faith towards 
their confederates, the Court cannot possess.^ 

The Declaration of Independence, which is the first great 
declaration of American principles, says truly, "We hold these 
truths to be self-evident: That all men are created equal; 
that they are endowed by their Creator with certain unalien- 
able rights; that among these are life, liberty, and the pursuit 
of happiness. That, to secure these rights, governments are 
instituted among men, deriving their just powers from the 
consent of the governed." 

It follows, as a necessary conclusion from this statement in 
the great Declaration, that the people have an unalienable right 
to change their government whenever the common good re- 
quires. In fact, that very conclusion is drawn by the Declara- 
tion itself. 

Yet, because of the training of our ancestors, this Idea was 
difficult of establishment. As Braxton points out: 

Both Church and State taught and enforced the dogma that 
governments were of divine origin, and existed by divine right; and 
to this proposition the corollary was obvious, that the people had 
no right to alter what God had established. Finally the idea took 

^ Mass. Decl. of Rts., Art. V. 

2 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270. Cf. Reliance v. Prison 
Com. (1914), 161 Ky. 135, 142. 



FUNDAMENTAL PRINCIPLES 13 

root and began to develop, that while government, in its general 
sense, as distinguished from anarchy, may be said to be a divine 
institution, yet no particular form of government could lay just 
claim to any divine right of preference over any other form. In 
this one idea lay the germ of all modern political and civil liberty. 
Yet, simple and elementary as it seems to us, in this age of enlight- 
enment, it was many years before this idea could be reconciled to 
the tender consciences of many pious persons who had been taught 
from their childhood, as a part of their religion to hold in super- 
stitious veneration this "Icon Basilike" and all that it stood for.^ 

Practically every one of the original State constitutions of 
America contains an assertion of this fundamental right of the 
people to change their form of government. The following quo- 
tations from these constitutions may prove instructive on this 
point : j 

Some mode should be established by common consent, and for 
the good of the people, the origin and end of all governments, for 
regulating the internal polity of this colony.^ 

All political power is vested in and derived from the people only.^ 

All government of right originates from the people,'is founded in 
compact only, and instituted solely for the good of the whole.^ 

When any government shall be found inadequate or contrary to 
these purposes, a majority of the community hath an indubitable, 
inalienable, and indefeasible right to reform, alter, or abolish it, in 
such manner as shall be judged most conducive to the public weal.^ 

Whenever these great ends of government are not obtained, the 
people have a right, by common consent, to change it, and take such 
measures as to them may appear necessary to promote their safety 
and happiness. . . . The community hath an indubitable, un- 
alienable, and indefeasible right to reform, alter, or abolish 
government in such manner as shall be by that community 
judged most conducive to the public weal.® 

The people, from whom all power originates and for whose benefit 
all government is intended.^ 

1 VII "Va. Law Reg.," 79, 84. 

2 S. C. Const. (1776), Preamble. 

3 N. C. Const. (1776), Decl. of Rts., Art. I. 
* Md. Const. (1776), Art. I. 

5 Va. Const. (1776), Bill of Rts., § 3. 

« Pa. Const. (1776), Preamble and Decl. of Rts.j'Art. V. 

7 Ga. Const. (1777), Preamble. 



14 CONSTITUTIONAL CONVENTIONS 

Whenever these great objects are not obtained, the people have 
a right to alter the government, and to take measures necessary for 
their safety, prosperity, and happiness. . . . The people alone have 
an incontestable, unahenable, and indefeasible right to institute 
government; and to reform, alter, or totally change the same, when 
their protection, safety, prosperity, and happiness require it.^ 

All government of right originates from the people, is founded in 
consent, and instituted for the general good. Whenever the ends 
of government are perverted, and public liberty manifestly en- 
dangered, and all other means of redress are ineffectual, the 
people may, and of right ought, to reform the old, or establish a 
new government. The doctrine of non-resistance against arbitrary 
power, and oppression, is absurd, slavish, and destructive of the 
good and happiness of mankind.^ 

All just authority in the institutions of political society is derived 
from the people, and established with their consent, to advance their 
happiness; and they may, for this end, as circumstances require, 
from time to time, alter their constitution of government.^ 

It is important to note that these "self-evident truths," 
these "fundamental rights" are admitted rather than guaran- 
teed by the constitutions. See the following: 

Now no truth can be self-evident, which becomes evident only 
under particular conditions, as when it is deducible only from . . . 
the provisions of some positive code. ... If the truth in question 
is a self-evident truth, it is one which would obtain equally whether 
asserted in the constitution ... or not.'* 

It needed no reservation in the organic law to preserve to the 
people their inherent power to change their government.^ 

The Supreme Court of Rhode Island stands alone in denjang 
the principles laid down in the Bills of Rights. In 1883 it said : 

/It has been contended that there is a great unwritten common law 
of the states, which existed before the Constitution, and which the 
Constitution was powerless to modify or abolish, under which the 
people have the right, whenever invited by the General Assembly, 
... to alter and amend their constitutions, . . . Our Constitu- 

1 Mass. Const., Preamble and Bill of Rts., Art. VII. 

2 N. H. Const. (1784), Preamble and Bill of Rts., Art. X. 
s Del. Const. (1792), Preamble. 

^ Jameson, pp. 235-236. 

6 Ellingham v. Dye (1912), 178 Ind. 336, 344. 



FUNDAMENTAL PRINCIPLES 15 

tion is . . . the Supreme law of the State! We know of no law, 
except the Constitution and laws of the United States, which is 
paramount to it.'^ 

And this in the teeth of the fact that the Bill of Rights then 
in force in Rhode Island proclaimed: 

The basis of our political systems is the right of the people to 
make and alter their constitutions of government.^ 

And of the fact that the Rhode Island convention which rati- 
fied the Federal Constitution included in the ratification these 
words : 

That the powers of government may be re-assumed by the people, 
whensoever it shall become necessary to their happiness. 

Holcombe has an ingenious theory that the Federal Consti- 
tution destroyed this right referred to in the various State con- 
stitutions, but he is apparently alone in this.^ 

How may the people exercise this right to change their 
government? They may do it in any one of three ways : namely, 
(1) by some authorized procedure; (2) by a lawful act of the 
whole people in their sovereign capacity; or (3) by the spon- 
taneous act of an unrepresentative part of the people. 

By the term "authorized procedure," I mean some method 
provided by the charter or constitution under which the State 
in question is governed, or by the express permission of some 
sovereign government, in case the people in question are a 
subject people. An example of the latter sort is when Congress 
passes an act permitting some subject territory of the United 
States to frame a form of government preparatory to its ad- 
mission to statehood. 

The whole people in their sovereign capacity, acting through 
the forms of law at a regular election, may do what they will 
with their own frame of government, even though that frame 
of government does not expressly permit such action, and even 
though the frame of government attempts to prohibit such 
action. This method of change of government will be amplified 
and justified in Chapter IV. 

1 Opinion of Justices (1883), 14 R. I. 649, 654. 

2 R. I. Const., Art. I, § 1. 

^ Holcombe, "State Government," p 33. See p. 168, infra. 



16 CONSTITUTIONAL CONVENTIONS 

When a part of the people or even a majority of them act 
outside the forms of law, they have no power except the power 
of force to bind those who do not join in the movement. Such 
a change or attempted change of government is nothing but 
factional, even though it may be conducted in a most orderly 
manner. Factional changes of government, or "spontaneous 
changes," as Jameson calls them, will be discussed more fully 
toward the end of this chapter.^ 

The Pennsylvania Supreme Court has attempted to draw a 
distinction between these three methods of change of govern- 
ment. The court's language is as follows : 

The words "in such manner as they may think proper," in the 
declaration of rights, embrace but three known recognized modes 
by which the whole people, the state, can give their consent to an 
alteration of an existing lawful frame of government, viz. : 

1. The mode provided in the existing constitution. 

2. A law, as the instrumental process of raising the body for 
revision and conveying to it the powers of the people. 

3. Revolution. 

The first two are peaceful means through which the consent of 
the people to alteration is obtained, and by which the existing 
government consents to be displaced without revolution. The gov- 
ernment gives its consent, either by pursuing the mode provided in 
the constitution, or by passing a law to call a convention. If con- 
sent be not so given by the existing government the remedy of the 
people is in the third mode, — revolution. 

If the legislature) possessing these powers of government, be 
unwilling to pass a law to take the sense of the people, or to dele- 
gate to a convention all the powers the people desire to confer 
upon their delegates, the remedy is still in their own hands; they 
can elect new representatives that will. If their representatives 
are still unfaithful, or the government becomes tyrannical, the 
right of revolution yet remains.^ 

The author would suggest that the following changes be 
made in the parts which he has italicized: namely, that the 
first "revolution" be changed to "spontaneous action, ratified 
by acquiescence," and that the second and third "revolution" 
be changed to " spontaneous action." 

1 See pp. 19-23, infra. Cf. Jameson, p. 104. 

2 Wells V. Bain (1872), 75 Pa. 39, at 47-48. 



FUNDAMENTAL PRINCIPLES 17 

Let US not however attempt to decide at just this point 
whether the Pennsylvania Court correctly used the term 
"revolution." This is really a question of terminology rather 
than of fundamentals. The definition of the word will be dis- 
cussed in Chapter III/ and in Chapter IV there will be con- 
sidered the question as to whether popular conventions may 
properly be designated as "revolutionary."^ 

On the fundamental points expressed, the Pennsylvania 
Court was entirely correct. It laid down the principles that the 
electorate is really a representative body, a body representing 
"the people." 

The people here meant are the whole — those who constitute 
the entire state, male and female citizens, infants and adults. A 
mere majority of those persons who are qualified as electors are not 
the people, though when] authorized to do so, they may represent 
the whole people. 

The electors who can pronounce the voice of the people are those 
alone who possess the qualifications sanctioned by the people in 
order to represent them, otherwise they speak for themselves only, 
and do not represent the people. 

A majority of the adult males having the qualifications of elec- 
tors can bind the whole people only when they have authority to 
do so. 

The great error of the argument of those who claim to be the 
people, or the delegates of the people, is in the use of the word 
'people. Who are the people? Not so many as choose to assemble 
in a county, or a city, or a district, of their own mere will, and to 
say — we the people. Who gave them power to represent all others 
who stay away? Not even the press, that wide-spread and most 
powerful of all subordinate agencies, can speak for them by au- 
thority. The voice of the people can be heard only through an 
authorized form, for, as we have seen, without this authority a part 
cannot speak for the whole, and this brings us back to a law as the 
only authority by which the will of the whole people, the body 
politic called the state, can be collected under an existing lawful 
government.^ 

^ See pp. 31-33, infra. ^ See p. 54, infra. 

3 Wells V. Bain (1872), 75 Pa. 39, at 46, 47, 49, and 53. 



18 CONSTITUTIONAL CONVENTIONS 

And Braxton says, in the same connection: 

The "people" to whom our Bills of Rights refer, the only 
"people" whom civilization recognizes as having any sovereign 
or political rights, are the people, not in a state of nature, but as 
organized into social government. When, therefore, we are dis- 
cussing any problem or doctrine of government, or of political or 
civil rights, let us lay aside all consideration of the people in a 
"state of nature"; let us omit all reference to that idle dream of 
the early theorists, about the people meeting together in a "vast 
plain" — a thing they, of course, never did and never possibly could 
have done; and instead, let us ever consider the people, not as a 
capricious, erratic, lawless monster, but as an all-powerful, but 
orderly, force moving only in lawful form, in accordance with the 
great rules and principles, and in pursuance of the methods, which 
are essential to its organized existence.^ 

The people do not vote at a popular election any more than 
they vote at a session of the legislature. They speak only 
through representatives in either instance. The people include 
men, women, and children. In some governmental functions, 
these people speak through the electors, in other instances 
through the legislature, but always through representatives. 

Some writers have even gone to the extent of stating that 
the electors are the people. Witness the following: 

Under our system of government it is apparently well settled 
that the ultimate sovereignty is in the people, in the restricted 
sense of those who are enfranchised. The power to change the fun- 
damental — the written constitution — is in them alone. It is 
this principle which causes the courts to recognize generally the 
right of the legislature, as the organ of the people, to submit a call 
for a convention of the people, and to regard such a convention as a 
valid method of constitution making, although the existing con- 
stitution contains no provision to that effect.^ 

The Massachusetts Supreme Court has recently held that 
"people" as mentioned in the Bill of Rights are all the people, 
whereas "people" in provisions relative to elections are merely 
the qualified voters.^ This would seem to be a very sensible 
distinction. 

But be that as it may. A majority of the electors can repre- 

1 VII "Va. Law Reg.," 79, 87. 

2 XXIX "Harv. Law Rev.," 529. 

3 1917 Mass. Senate Doc, 512. See pp. 208-209, mfra. 



FUNDAMENTAL PRINCIPLES 19 

sent the people only at a duly held election. The action of a ma- 
jority of the electors in any other manner is just as ineffective as 
would be the action of a majority of the legislators taken during 
a legislative recess. 

The Pennsylvania Court expresses these thoughts in the 
following language: 

The people, that entire body called the state, can be bound as a 
whole only by an act of authority proceeding from themselves. In 
a state of peaceful government they have conferred this authority 
upon a part to speak for the whole only at an election authorized 
by law. It is only when an election is authorized by law, that the 
electors, who represent the state or whole people, are bound to 
attend, and if they do not, can be bound by the expression of the 
will of those who do attend.^ 

Law is the highest form of a people's will in a state of peaceful 
government, when a people act through a law the act is theirs.^ 

Judged by these standards, it will be seen that a spontaneous 
convention is not really a movement of the whole people, no 
matter how large a percentage of the voters it actually repre- 
sents. 

This may answer the suggestion which is often made by loose 
thinkers on this subject; namely, if some rich man or some 
body of men were to pay the expenses of holding a state-wide 
election, and were to invite all the voters to attend, would not 
an amendment adopted at such an election become a valid 
part of the constitution through thus receiving the popular 
sanction? But the Pennsylvania Court replies as follows : 

Let us suppose a voluntary election unauthorized by law, and 
delegates elected. It is plain a convention composed of such dele- 
gates would possess no power to displace the existing government, 
and impose a new constitution on the whole people. Those voting 
at the unauthorized election had no power to represent or to bind 
those who did not choose to vote. 

Suppose a constitution formed by a volunteer convention, as- 
suming to represent the people, and an attempt to set it up and dis- 
place the existing lawful government. It is clear that neither the 

1 Wells V. Bain (1872), 75 Pa. 39, 47. See also in this connection the quo- 
tation on page 22, mfra. 

2 Wood's Appeal (1874), 75 Pa. 59, 71-72. 



20 CONSTITUTIONAL CONVENTIONS 

people as a whole nor the government having given their assent in 
any binding form, the executive, judiciary and all officers sworn to 
support the existing constitution would be bound, in maintenance 
of the lawfully-existing institutions of the people, to resist the 
usurpation, even to the whole extent of the force of the state. If 
overpowered, the new government would be established, not by 
peaceful means, but by actual revolution.^ 

The leading example of factional convention In the United 
States is the "People's Convention" in 1841 in Rhode Island, 
which culminated in what is generally known as "Dorr's Re- 
bellion," to be discussed a little later. 

In Maryland, in 1837, there were conditions like those in 
Rhode Island in 1841, and the supporters of reform elected a 
convention without any authorization from the regular govern- 
ment, but the convention took no action, for the legislature 
hastened to adopt the most important proposed reforms.^ 

Somewhat similar to the Maryland case was that of the con- 
vention at Topeka in the territory of Kansas in 1855. This 
convention was assembled upon the recommendation of meet- 
ings and associations of private individuals. The constitution 
which it framed was submitted to a popular vote and received 
a majority of the votes cast upon the question of its adoption, 
although only its friends voted upon this question. This con- 
stitution was never recognized by Congress, though it would 
seem that the irregularity of its formation and adoption might 
have been cured by congressional ratification, had Congress 
cared to take such action.^ 

The territory of Michigan in 1835 adopted a constitution 
and applied for admission into the Union. Congress passed an 
act that Michigan should be admitted if she would agree to a 
restricted boundary. The new State rejected the condition. 
Thereupon a popular movement was begun, and delegates were 
elected to a convention, which assembled without either con- 
gressional or State authorization, and assented to the condition 
imposed by Congress. Congress accepted this action as satis- 
factory and by its acceptance ratified the action of the irregular 
convention.^ 

1 Wells V. Bain (1872), 75 Pa. 39, 48-49. 

2 Jameson, p. 216; Dodd, p. 61. 

3 Jameson, pp. 202-204; Dodd, p. 61. 

4 Jameson, pp. 188-189; Dodd, pp. 61-62. 



FUNDAMENTAL PRINCIPLES 21 

Thus what is originally merely a factional convention may in 
some cases become an authorized convention by subsequent rati- 
fication; in such cases, by Congress. 

' But apart from some curing ratification, we have seen that, 
although the people are supreme, they have no method of ex- 
pression except through their representatives, the voters; and 
they in turn can only speak by means of elections regularly 
called and held. 

It was this little technical point alone which justified the prose- 
cution of Thomas W. Dorr for supporting the " People's Con- 
stitution" of 1841 in Rhode Island. Under his leadership the 
people of that State attempted to overthrow the tyrannous rule 
of the landholding classes who were still entrenched behind the 
King's charter. Caucuses of the adult male citizens through- 
out the State sent delegates to a convention which submitted a 
fair and democratic constitution to a special election called by 
it. At this election a clear majority of all the adult males voted 
for the new frame of government. Not only this, but among 
those voting in favor was a clear majority of those duly regis- 
tered' as voters under the charter. Dorr was subsequently 
elected Governor. He attempted to assume office, but John 
Tyler, Whig President of the United States, interfered at the 
request of the Whig charter government, and forced Dorr and 
many of his followers into exile, by threatening to send Fed- 
eral troops into the State. This partisan action, by the way, 
is chiefly what drove the Whigs from power in the succeeding 
national election. Equally partisan was the Democratic con- 
gressional report on Tyler's action, which report will be cited 
elsewhere in this volume. 

On Dorr's return, a few years later, he was tried and convicted 
of high treason. In the meantime, the Charterists themselves 
had submitted a constitution, which had received the votes of 
less than one third of the adult males, less than half of the regis- 
tered vote. 

Yet technically this became the constitution of the State, 
and the People's Constitution did not. Neither method of pro- 
cedure was authorized by the charter. The valid one received 
seven thousand votes; the invalid one nearly fourteen thou- 
sand. Yet the difference in validity lay in this : the seven thou- 
sand voted at a duly called election, and hence had authority 



22 CONSTITUTIONAL CONVENTIONS 

to speak for the whole people; whereas the fourteen thousand 
voted at an irregular election, and hence spoke only for them- 
selves.^ 

The following quotations from the unreported opinion of 
the Rhode Island Supreme Court rendered at Dorr's trial may 
prove instructive. 

This court can recognize no other [i. e. constitution] than that 
under which it holds its existence. . . . Any irregular action, with- 
out legal authority, is no action at all, that can be taken notice of 
by a court of law. ... It matters not therefore whether a major- 
ity, or what majority, voted for a pretended constitution, as is 
alleged by the prisoner, and as he now asks to be permitted to 
prove. The numbers are nothing; we must look to the legality of 
the proceeding, which, being without form of legal authority, is 
void and of no effect.^ 

See also the following quotations from the argument of Daniel 
Webster in the famous case of Luther v. Borden in which the 
United States Supreme Court went very fully into the validity 
of Dorr's Rebellion, although deciding the case on other grounds: 

When it is necessary to ascertain the will of the people, the legis- 
lature must provide the means of ascertaining it. 

There must be an authentic mode of ascertaining the public will 
somehow and somewhere. If not, it is a government of the strong- 
est and most numerous.* 

One of the five instances in which new States have been formed 
within the boundaries of other States, presents an example of a 
factional convention. Vermont is not such an instance, as she 
had maintained her independence against the State of New 
York and the United States for fourteen years ;^ and hence, 
however irregular had been her original organization, her gov- 
ernment had become regular through lapse of time and ac- 
quiescence of her people.^ 

But in the case of West Virginia, the legality of its admission 

^ For full accounts of "Dorr's Rebellion" see Committee Rept., 546, 
1st Sess., 28tli Cong.; Mowry, "The Dorr War" (1901); Luther v. Borden 
(1849), 7 How. 1. 

2 "Trial of Dorr," p. 38. ^ 7 How. 1, 31-32. 

* Jameson, p. 139. ^ See Chapter XVII, infra. 



FUNDAMENTAL PRINCIPLES 23 

into the Union depends to a large extent on the legaHty of the 
absolutely revolutionary pro-union government, which was 
set up in the State of Virginia shortly after the outbreak of the 
Civil War. This government appears to have been ordained by 
a convention extremely factional, representing but a fraction 
of the people of a fraction of the State; and yet the assent of 
this government to the dismemberment of Virginia was ren- 
dered effective by force of Federal arms, just as the factional 
government in Rhode Island was rendered ineffective by the 
same force.^ 

The possibility of spontaneous changes being legal has been 
suggested in the following dictum: 

It may well be questioned whether, had the Legislature refused 
to make provision for calling a convention, the people in their 
sovereign capacity would not have had the right to have taken such 
measures for framing and adopting a constitution as to them seemed 
meet.^ 

The Committee of Congress, chosen for partisan purposes to 
prepare a report on Dorr's Rebellion, discreditable to President 
Tyler, framed an ingenious theory along the lines of the above 
dictum, to the effect that a majority of the adult males consti- 
tute the people. This theory they expressed in the following 
language: 

That the (political) people include all free white male persons, 
of the age of twenty-one years, who are citizens of the State, are 
of sound mind, and have not forfeited their right by some crime 
against the society of which they are members.^ 

It is true that the original Virginia Bill of Rights says that 
"a majority of the community hath an indubitable, unalien- 
able and indefeasible right, etc."^ And Walker says that the 
right of revolution exists "whenever a majority desire it." ^ 

But in the light of the foregoing discussion, it is probable that 
what Walker and the framers of the Virginia constitution really 

^ Jameson makes a half-hearted claim that all this was perfectly constitu- 
tional. Jameson, pp. 168-172. 

2 Goodrich v. Moore (1858), 2 Minn. 61, 66. 

3 Committee Rept., 546, 1st Sess., 28th Cong., p. 50. 
* Va. Bill of Rights, § 3. 

6 Walker, "American Law" (11 ed.), p. 231. 



24 CONSTITUTIONAL CONVENTIONS 

meant was the right of the people, speaking through a majority 
of their electors. 

At any rate, particularly in these days when women are clam- 
oring that they too are people, it is easier to follow the Penn- 
sylvania view that all male, female, and minor citizens are 
people, but that the people can speak only through duly 
qualified voters.^ 

Of course, it is true that many factional movements have 
succeeded in overturning the government. But they have been 
ratified by subsequent events, which made up for the illegality 
of their beginnings. The spontaneous governments of the 
American colonies succeeded when force triumphed over Eng- 
land. The "People's" government of Rhode Island failed, 
and the Union government of West Virginia succeeded, because 
of force, applied by the Federal authorities. 

Revolutionary conventions . . . are not peculiar to any coun- 
try, but have existed wherever, and will continue occasionally to 
exist as long as, the ultimate and eternal right of revolution re- 
mains — a right which, it is said, depends solely upon the power to 
successfully invoke it.^ 

If overpowered, the new government would be established, not 
by peaceful means, but by actual revolution.^ 

Thus authorized movements depend upon either constitu- 
tional or congressional authority; popular movements depend 
upon the power of the people; spontaneous movements depend 
upon force, or at least upon acquiescence. 

No exact line can be drawn between the three different 
classes of change of government; each merges into the next, 
and many instances are on the line. 

Daniel Webster has summed up, in the following words, 
the ground which we have just covered, and this summary has 
twice received the approval of the United States Supreme Court: 

Mr. Webster's argument in that case took a wider sweep, and 
contained a masterly statement of the American system of govern- 
ment, as recognizing that the people are the source of all political 
power, but that as the exercise of governmental powers immediately 
by the people themselves is impracticable, they must be exercised 

^ See quotation from Wells v. Bain, p. 17, supra. 
2 Braxton, VII "Va. Law Reg.," 79, 82. 
s Wells V. Bain (1872), 75 Pa. 39, 49. 



FUNDAMENTAL PRINCIPLES 25 

by representatives of the people; that the basis of representation 
is suffrage; that the right of suffrage must be protected and its 
exercise prescribed by previous law, and the results ascertained by 
some certain rule; that through its regulated exercise each man's 
power tells in the constitution of the government and in the enact- 
ment of laws; that the people limit themselves in regard to the 
quahfications of electors and the qualifications of the elected, and 
to certain forms for the conduct of elections; that our liberty is the 
liberty secured by the regnilar action of popular power, taking place 
and ascertained in accordance with legal and authentic modes; and 
that the Constitution and laws do not proceed on the ground of 
revolution or any right of revolution, but on the idea of results 
achieved by orderly action under the authority of existing govern- 
ments, proceedings outside of which are not contemplated by our 
institutions.^ 

One more fundamental point, not directly related to the fore- 
going, must however be discussed: namely, the meaning of 
constitutionality and unconstitutionality, and the relation 
between the constitution and governmental affairs in general.^ 

This is a subject under which there exists a good deal of mis- 
apprehension, with the result that lawyers, writers, and even 
judges have been found laying down the principle that anything 
which is not authorized by the constitution must, therefore, 
be considered as prohibited by the constitution. And yet the 
great distinction drawn by Chief Justice Lemuel Shaw between 
Federal and State constitutions rests upon a denial of this 
assumption.^ 

The purport of his decision was that there exists midway 
between the class of actions prohibited by the constitution and 
the class of action authorized by the constitution, a twilight 
zone consisting of those actions which are neither authorized 
nor prohibited. 

As the Federal government has no powers other than those 
expressly or impliedly given to it by the Constitution, all 
Federal activities within the twilight zone are just as illegal as 
those which fall into the expressly prohibited class. As the 
people reserve to themselves all powers not expressly or im- 

1 Re Duncan (1891), 139 U. S. 449, 461; Taylor v. Beckham (1899), 178 
U. S. 548, 579. _ _ 

^ For a definition of " constitutional," see p. 30, infra. 
^ Commonwealth v. Kimball (1837), 24 Pick. 359. 



26 CONSTITUTIONAL CONVENTIONS 

plledly granted to the three branches of the government, it 
follows that with respect to the State constitutions, any action 
falling within the twilight zone is lawful through not being 
prohibited. 

Thus it is seen that there are three classes of cases in con- 
stitutional law, namely: (1) things authorized; (2) things 
neither authorized nor prohibited; and (3) things prohibited. 

To this may perhaps be added a fourth class, namely, things 
which the constitution has no power either to authorize or to 
prohibit. 

Thus with respect to the control of State constitutions over 
the question of amending the constitution, any given method 
may be either (1) expressly authorized; (2) permitted because 
not prohibited; (3) prohibited; or (4) beyond the jurisdiction 
of the constitution. 

This fourth class is perhaps a subdivision of the second. 
Any amendatory method which is beyond the control of the 
constitution falls into class 4, regardless of whether the con- 
stitution attempts to authorize or prohibit it, or merely remains 
silent on the subject. 

A word more relative to this fourth class. Some persons 
will deny that there can exist a class of actions, which are 
neither constitutional nor unconstitutional, being beyond the 
control of the constitution. To such a person, the following 
question should be put: "Under the State constitution, is it 
constitutional or unconstitutional for the President of the 
United States to call out the State militia?" The answer is: 
"The State constitution has nothing to do with the matter." 
This is merely one example to show the possibility of the exist- 
ence of extra- or even 52ipra-constitutional matters. 

Now to another point: the suggestion was made in Chapter I 
that when the colonies declared their independence, they re- 
verted to a state of nature.^ This suggestion deserves a little 
analytical attention. 

Dodd quotes with approval the following from a resolution 
passed at a meeting of New Hampshire towns in 1776: 

It is our humble opinion, that, when the Declaration of Inde- 
pendency took place, the Colonies were absolutely in a state of 

1 P. 1, supra. 



FUNDAMENTAL PRINCIPLES 27 

nature, and the powers of Government reverted to the people at 
large.'^ 

And the Supreme Court of Virginia has said : 

The instant that the declaration of independence took effect, 
had the convention proceeded no farther, the government, as for- 
merly exercised by the crown of Great Britain, being thereby 
totally dissolved, there would never have been an ordinary legisla- 
ture, nor any other organized body, or authority in Virginia. Every 
man would have been utterly absolved from every social tie, and 
remitted to a perfect state of nature.^ 

But Braxton says: 

What, then, is this "right of the people" (or of a majority of 
them) to "alter their government," which the advocates of con- 
ventional omnipotence invoke to support their views? Is it the 
right to resolve themselves into a "state of nature," to "scatter 
the elements of government around them," and to " stand upon the 
foundations of society" — "to conjure up chaos?" Surely not. 

To the religious man, government, in its broadest sense, is still 
regarded as ordained by God, and therefore the people have no right 
to abolish it; to the non-religious, it is still an absolute essential 
for the existence of society. What right, then, have the people to 
abolish government? The "people," as we have seen — the only 
"people" whom political society can recognize are the people or- 
ganized into a government of some sort. If, then, they should 
abolish all government, they would manifestly destroy their own 
existence. 

When we speak of the^ right of the people to govern themselves 
we do not mean what the words literally imply, but merely their 
right to alter or amend their government, or to replace it with a new 
one, at their pleasure. 

The existence of government is absolutely essential to the exist- 
ence of the "people" in any political sense; and the only way in 
which the people have a right to abolish the government is by 
substituting a new one in its stead. There can be no hiatus be- 
tween them. 

The idea of the people resuming — taking back into their own 
hands — all the powers of government is a delusion. The people 
can never take the powers of government into their own hands; 

1 N. H. State Papers, Vol. VIII, p. 425; Dodd, p. 2. 

2 Kamper v. Hawkins (1793), 3 Va. 20, 72. 



28 CONSTITUTIONAL CONVENTIONS 

the utmost they can do is to enlarge or curtail, amend or alter, those 
powers in the hands of their government, or to transfer them from 
one government to another; but they can never "resume" them 
in toto. Not only have they no right, but they have no power to 
do so. They can abolish government, and thereby destroy their 
own political existence, but they can never directly exercise the 
powers of government — only a government of some sort can pos- 
sibly do this.^ 

In other words, the people are all-powerful like Samson; 
but when they pull down the temple of the state, they thereby 
destroy themselves. 

Of course, Braxton is right; but is he not setting up a man 
of straw so as to knock it down again? He is attacking the 
oratorical flights of fancy of those who assert convention 
sovereignty,^ rather than attacking the real foundations of their 
arguments. 

Most other writers assume that which Braxton sets out so 
elaborately to prove. Thus Jameson says that the people are 
a corporate unit, comprising all the citizens of the state.^ 
The Pennsylvania Supreme Court has defined the people as 
"the body politic called the state."* 

And the Supreme Court of Virginia reaches the same con- 
clusion, although basing the result upon the inconvenience 
rather than the impossibility of a state of nature.^ 

From all the foregoing discussion, we can deduce the follow- 
ing fundamental principles to guide us in considering the status, 
powers, and limitations of constitutional conventions. 

Ours is a representative government, founded on popular 
sovereignty. 

"The people" are the people as organized into a state of 
social government; they cannot abolish government without 
thereby terminating their own existence as the people. 

Governments derive their powers from the consent of the 
governed; therefore the governed have a right to withdraw 
that consent and to change their government at will. They can 
exercise this right either by an authorized procedure, by a 

1 VII "Va. Law Reg.," 79, 88-89. 

2 Convention sovereignty will be considered on its merits in Chapter XI. 
' Jameson, p. 1. 

4 Wells V. Bain (1872), 75 Pa. 39, 53. 
6 Kamper v. Hawkins (1793), 3 Va. 20, 72. 



FUNDAMENTAL PRINCIPLES 29 

lawful though unauthorized act of the whole people, or by a 
spontaneous act, provided that in the case of such spontaneous 
act, it be later ratified by some higher power, i. e. either Con- 
gress in the case of a Territory, or the people themselves in the 
case of the State. The people can speak only through their 
representatives, the voters, and the voters can speak only at a 
regular election. 

It is not necessary that a given action be either authorized 
or prohibited by the constitution; it toay be permitted by not 
being mentioned at all, or it may be valid because outside the 
power of the constitution. 



Chapter III 
ANALYSIS OF QUESTIONS 

In the light of the historical development of constitutional 
conventions and of the fundamental principles already dis- 
cussed, we are now prepared to analyze the various questions, 
for the object of answering which this book is written. 

First, let us observe the French proverb, "Definissons nos 
termes!" 

The term "constitutional convention" is not felicitous, for 
the word "constitutional" may mean to some people "author- 
ized by the constitution," and to others merely "relating to 
the constitution." Hence the apparent anomaly of the phrase 
"an unconstitutional constitutional convention." Therefore, 
a "constitutional convention," as used in this book, may be 
defined as "a convention employed as a step toward framing 
or revising a constitution." To avoid ambiguity, such con- 
ventions will nearly always be referred to merely as "conven- 
tions," omitting the word "constitutional." To the same end, 
the word "constitutional" will never be used immediately 
preceding the word "convention" to indicate the constitution- 
ality of the convention; but rather some circumlocution will be 
employed. 

Even when used to refer to the constitutionality of the con- 
vention, the terms "constitutional" and "unconstitutional" 
present an ambiguity. "Constitutional," as we have seen in 
the preceding chapter, may refer either to something authorized 
by the constitution, or to something valid through not being 
prohibited by the constitution, or even to something which is 
legal because beyond the control of the constitution. "Un- 
constitutional" may mean the reverse of any of those three 
things. As used in this book, the term "constitutional" will 
be used only to apply to matters over which the constitution 
has control, and which in the exercise of that control it either 
authorizes or omits to prohibit. 



ANALYSIS OF QUESTIONS 31 

A circumlocution will be used, whenever possible, in place of 
the word "submission"; for this word might equally well mean 
"acquiescence in" or "reference to." 

" Revolution," as applied to conventions, is a word upon which 
there can be no possibility of agreement. Jameson, Dodd, 
Braxton, and others insist that popular conventions are not 
revolutionary, and reserve the term "revolution" for sponta- 
neous conventions alone. 

Dodd says: 

The convention . . . is in no sense a revolutionary . . . body.^ 

Braxton says: 

A constitutional convention is a normal and legal institution, 
... it involves neither revolution nor a dissolution of the ordinary 
government, even in theory. 

In the earlier days existing social systems did not contemplate the 
legal possibility of, and therefore made no provision for, any fun- 
damental change in their constitutions: hence, the only means of 
effecting such change was, by revolution, to overthrow the exist- 
ing government, and, by force, either to engraft upon it the desired 
changes, or else to substitute an entirely new system in its place. 
But, as the science of government became better understood, and 
the great doctrine of the right (not merely the power) of the people 
to change their government, was promulgated, it was found that it 
was not necessary to resort to revolution in order to change or 
modify government, but that such changes or modifications might 
be made as peacefully, as orderly and as legally as any ordinary 
function of government could be exercised. From the idea in- 
volved in this doctrine grew the modern Constitutional Convention, 
an institution so far unconnected and inconsistent with revolution, 
either peaceful or violent, that its whole purpose and raison d'etre 
is to prevent, and do away with, the necessity of excuse for revolu- 
tion — in fact, it might properly be called the " Anti-Revolutionary 
Convention." ^ 

But it is to be remembered that Dodd and Braxton wrote 
in States (Illinois and Virginia respectively) where conventions 
are held under the authority of constitutions. Accordingly 
their views as to all conventions are colored by the fact that the 

1 Dodd, p. 72. 

2 VII "Va. Law Reg.," 79, 96, 81. 



32 CONSTITUTIONAL CONVENTIONS 

conventions with which they have had to deal have been of the 
authorized variety. Similarly the present author's point of 
view may be colored by the fact that conventions in Massachu- 
setts are generally recognized as being revolutionary. 
The Supreme Court of Pennsylvania says: 

It is not pretended that the late convention sat as a revolu- 
tionary body.^ 

If they are correct in their theory that conventions, sanctioned 
by the inalienable right of the people and assisted by the exist- 
ing legislature, are not revolutionary, then, by their test, the 
secession conventions of the Southern States were not revolu- 
tionary, nor is even the coming constitutional convention in 
Russia. 

By "revolution" they probably mean "revolution by vio- 
lence." But violence or lack of violence ought not to be the 
test in determining the fundamental nature of a governmental 
overturn. 

In the words of Reverend William B. Greene: 

It is not necessary, in order that there be a revolution, that there 
should be blood shed, powder burned, and other attendants of war 
displayed. A revolution may take place peaceably, and if the right 
is once recognized in a country, it should take place peaceably, be- 
cause in the recognition of that right, is also the recognition of the 
duty of obedience upon the part of the Government,^ 

Walker uses the word "revolution" in the same sense when 

he says: 

But it is needless to enlarge upon the general right of revolution. 
It must of necessity exist, whenever a majority desire it, even 
though the existing government should be in terms made perpet- 
ual, as some of the provisions in our constitutions are declared 
to be.^ 

Gen. Benjamin F. Butler, leader of the majority in the Massa- 
chusetts convention of 1853, expressed the sentiments of his 
party when he said in that body: 

» Wells V. Bain (1872), 75 Pa. No. 39, 48. 

2 Deb. Mass. Conv. of 1853, I, 129. 

3 Walker, "American Law" (11 ed.), p. 231. 



ANALYSIS OF QUESTIONS 33 

Are we not now engaged in a revolution — a peaceful revolution 
by the ballot-box, and not by the sword and the bayonet? Sir, 
these are revolutionary times, so far as the Government is con- 
cerned. We are assembled to revolutionize, so far as it may be 
judged expedient, the organic structure of our present Constitu- 
tion. I look upon this whole proceeding of calling a convention as 
a mode of revolution by which we may peaceably accomplish that 
which in other countries is attained by the sword, and by force. 
Here, through the medium of the ballot-box, the people take to 
themselves the supreme control of the whole machinery of the 
government.^ 

However, as already said, it will be impossible to agree on 
this term. Dispute would be profitless. Accordingly, let us 
agree that, for the purposes of this book, the author will use the 
word "revolution" to mean any overturn unauthorized by the 
constitution. 

The New York Supreme Court nearly reaches this definition, 
when it says: 

A change in the fundamental law, when not made in the form 
which that law has prescribed, must always be a work of the ut- 
most dehcacy. Under any other form of government than our own, 
it could amount to nothing less than a re volution. ^ 

They might have added, " And under ours it is revolutionary, 
even though not a revolution." 

And the Rhode Island Supreme Court, although denying the 
lawfulness of conventions, says that if there is any such law, it 
is a law of revolutionary rather than of constitutional change.^ 

Ruling Case Law says: 

An attempt by the majority to change the fundamental law in 
violation of the self-imposed restrictions is unconstitutional and 
revolutionary.^ 

Having disposed of the foregoing definitions, we ought next 
to proceed to classify the various sorts of constitution conven- 
tions. Now, the convention is only one of the many means for 
altering the form of government. 

1 Deb. Mass. Conv. of 1853, I, 78-79. 

2 Journal, 69th N. Y. Assembly, p. 920. 

3 O'pinion of Justices (1883), 14 R. I. 649, 654. 
<• 6 R. C. L., § 16. 



34 CONSTITUTIONAL CONVENTIONS 

We have seen, during the discussion of fundamental princi- 
ples in the last chapter, that changes of government may be 
either authorized, popular, or spontaneous.^ 

Among the authorized methods are: amendment by legisla- 
tive action, amendment by popular vote after submission by the 
legislature, amendment by the initiative, and amendment by 
convention. 

With respect to a popular uprising, the convention is appar- 
ently the only method whereby the form of government can 
be legally changed in disregard of constituted authority; al- 
though if the question of amendment could get on to the ballot 
at a regular election in some other unauthorized way, the action 
of the electors in ratifying it would probably be just as binding. 

Spontaneous methods of change of government all, in the 
last analysis, depend upon force for their success; therefore it 
is immaterial in which of the many possible spontaneous ways a 
constitution is promulgated, if it be later established by force. 
The force is all that is material. Success succeeds, and failure 
fails; no other difference is apparent between successful and 
unsuccessful spontaneous conventions. 

Thus each of the three classes of changes in constitutions — 
to wit, authorized, popular, and spontaneous — may take the 
form of a convention; and accordingly we have as the three 
sorts of conventions to be considered in this book, the author- 
ized convention, the popular convention, and the spontaneous 
convention. 

The spontaneous convention we may disregard, as it is bound 
by no law and derives whatever force it may have from subse- 
quent events, rather than from the way in which it is either con- 
stituted or conducted. Spontaneous conventions are without the 
form of law and, therefore, cannot possibly provide us with 
useful precedents. 

This book aims to discuss the nature, powers, and limitations 
of both authorized and popular conventions. The nature of 
authorized conventions depends largely upon the source of the 
authority. But popular conventions all probably derive their 
authority from the people, although this is disputed by Jameson, 
who asserts that they derive their authority from the legislature. 
A whole chapter will be devoted to discussing this point of dis- 
^ See p. 15, supra. 



ANALYSIS OF QUESTIONS 35 

agreement.^ The question of whether the legislature calls the 
convention leads us to the question of whether the legislature 
can call itself a convention, to which question a chapter will be 
devoted.^ 

The question naturally arises in connection with popular con- 
ventions as to whether, inasmuch as they are not authorized by 
the constitution, they are not thereby rendered unconstitutional 
and void. A chapter will be devoted to this point also.^ 

Aside from the question of the source of authority of the two 
sorts of conventions, there are the questions of their relation 
to the other departments of government, the relative powers of 
the various departments, and the extent to which any of the 
departments can interfere with the convention or the conven- 
tion interfere with any of the departments. 

Accordingly, inter alia, we shall consider whether the State 
executive has power to interfere with both sorts of convention 
under various provisions or lack of provisions in the State 
constitutions, and also whether the Federal executive has power 
to intervene in determining the legality of convention action 
in one of the States. One chapter will be devoted to these con- 
siderations.^ 

Next as to the legislative department. Judge Jameson's 
entire work on constitutional conventions was wTitten with the 
view to proving the supremacy of the legislative branch over the 
convention.® For the purposes of his discussion, he assumed that 
all conventions, whether called at the one extreme under the 
provisions of the State constitution, or at the other by a direct 
vote of the people, were in either event the creatures of the legis- 
lature and hence subject to its control. Also, he treated the 
question of the power of the legislature to amend the statute 
calling a convention, as being merely a question of the right of the 
legislature to control the convention; whereas in reality it in- 
volves three questions: i. e. the power of the legislature, the 
source of the statute, and whether the legislature can amend an 
act passed by the people. 

The question, here involved, of the power of the legislature, 
is the same question that is involved in considering whether the 

^ Chapter V, infra. ^ Chapter VI, infra. 

^ Chapter IV, infra. * Chapter VII, infra. 

B Dodd, p. 73. 



36 CONSTITUTIONAL CONVENTIONS 

legislature can restrict a convention by the terms of the original 
convention act. 

The question of who enacts the convention act is the same 
question as that already referred to, relating to the source of 
authority of popular conventions. The question as to whether 
the legislature can amend a statute passed by the people in their 
sovereign capacity is self-explanatory. 

These three questions last referred to are each treated in a 
separate chapter.^ 

The restricting of the convention by the original convention 
act, if it be submitted to the people, instead of being, as we have 
just supposed, enacted by the legislature alone, involves the 
question of the power of the people to restrict the convention. 
This same question is involved when we discuss whether con- 
stituents have a right to give binding instructions to a conven- 
tion delegate. Popular control of conventions is the subject of 
one of the chapters.^ 

In contradistinction to the idea of legislative or even popular 
control, is the theory that the convention, once launched, be- 
comes the sovereign, and remains supreme so long as it is in 
existence. Conventions, claiming this degree of sovereignty, 
have exercised extraordinary powers, including the enactment 
of legislation and the removal of executive officers. They have 
even tried to amend the convention act by which they them- 
selves were created. Extraordinary powers claimed by conven- 
tions, including interference with the legislative and executive 
branches, form the contents of one chapter.^ 

Two questions closely related to each other are: whether the 
constitution applies to conventions, and whether the courts will 
interfere with conventions. Some people might assume that these 
are the same question; but it is clear that the constitution may 
perhaps apply, and yet that the courts may in some cases re- 
fuse to interfere with the convention, on the ground that it is 
a coordinate government body, and is therefore the judge of 
its own constitutional limitations; in other words, that the ques- 
tions involved are political rather than legal. On the other 
hand, the courts may interfere with a convention, on grounds 

^ See Chapter IX on the power of the legislature; Chapter V on the source 
of the statute; and Chapter VIII on the power to amend. 

2 Chapter X, infra. ^ Chapter XI, infra. 



ANALYSIS OF QUESTIONS 37 

not furnished by the constitution. Then, too, a court might 
also render assistance to a convention in enforcing its rights and 
powers. Accordingly, the author has tried to divide those some- 
what interrelated questions into two chapters, one dealing with 
judicial intervention,^ and the other dealing with the question 
as to whether the constitution applies to conventions.^ 

It is obvious that as all bodies have some incidental powers 
beyond the strict duties of such bodies, so also the convention 
must have some incidental powers which do not strictly relate 
to the framing of a constitution. These are discussed in a sep- 
arate chapter, which deals with the internal control of the con- 
vention by itself; and to this chapter the author has added 
some words on the privileges of the individual members.^ 

Not only is the legal status of the convention important, but 
also the legal status of the individual delegates. Are they 
public officers, and should they take an oath to support the 
constitution which they are engaged in overturning? Ought 
they to take any oath of office? These questions form the 
subject matter of another chapter, on the status of delegates.'* 

The questions of the need and method of submission of 
amendments by the convention to the electorate, are inciden- 
tally touched upon under almost every phase of the subject of 
constitutional conventions. There is involved the applicability 
of constitutional provisions, the binding force of the convention 
act, the power of the legislature to amend that act, and the 
right of judicial, executive, or popular interference. Yet the 
questions of the need and method of submission of the amend- 
ments are so important in themselves that the authorities and 
precedents have been collected in one chapter.^ 

A final matter for consideration is the doctrine that the 
validity and effect of all constitutional changes depends, in 
the last analysis, upon "getting away with it"; in other words, 
on the people and the existing government accepting and 
acquiescing in the change. One chapter is devoted to this 
doctrine of acquiescence.^ 

The concluding chapter of the book is a summary of the an- 
swers to the questions presented and analyzed in this chapter.^ 

* Chapter XII, infra. ^ Chapter XIII, infra. ^ Chapter XIV, infra. 

* Chapter XV, infra. ^ Chapter XVI, infra. ^ Chapter XVII, infra. 
' Chapter XVIII, infra. ■ 



Chapter IV 
POPULAR CONVENTIONS ARE LEGAL 

The exact legal status of popular conventions {i. e. those 
conventions which are held in such an orderly manner as clearly 
to represent the popular will, and yet which are not expressly 
authorized by the existing constitution) is a very important 
matter to consider. 

As we saw in Chapter II, any given method of amending 
the constitution of a State may be either (1) authorized by 
the constitution, or (2) permitted because not prohibited or 
because the constitution is powerless to prohibit, or (3) effectu- 
ally prohibited.^ 

In which class does the popular convention fall? There are 
authorities for placing this sort of convention in each of the 
three classes. 

It might seem at first glance that the convention method of 
amending the constitution could not possibly be legal except 
in the cases in which the State constitution expressly authorizes 
this method; and yet if this were so, the legality of at least one 
of the many such conventions which have been held throughout 
the United States, would certainly have been questioned before 
this. 

We have already discussed historically a number of these 
instances.^ Practically all the original constitutions of the 
thirteen colonies and Vermont were framed by popular con- 
ventions held by revolutionary governments without any 
further legal sanction than the will of the people as expressed 
through their electorate. Thus the Supreme Court of Virginia 
has said: 

!- The convention of Virginia had not the shadow of a legal, or 
constitutional form about it. It derived its existence and authority 
from a higher source; a power which can supersede all law, and 

* See p. 26, supra. ^ See Chapter I, supra. 



POPULAE CONVENTIONS AEE LEGAL 39 

annul theconstitution itself — namely, the people, in their sover- 
eign, unlimited, and unlimitable authority and capacity.^ 

Some of these constitutions, now recognized as valid, did 
not even have this sanction, and may therefore be regarded 
as merely factional. 

The Constitution of the United States was superimposed 
upon the various State constitutions without any authority 
derived from any of them, and in direct violation of the pro- 
vision of the Articles of Confederation.^ Not only this, but 
it might legally have been adopted by the people of the various 
States, against the will of the various State governments, for 
the United States Supreme Court has said : 

The assent of the States, in their sovereign capacity, is implied 
in calling a Convention, and thus submitting that instrument to 
the people. But the people were at perfect liberty to accept or 
reject it ; and their act was final. It required not the affirmance, and 
could not be negatived, by the State governments. The consti- 
tution, when thus adopted, was of complete obligation, and bound 
the State sovereignties. 

It has been said that the people had already surrendered all 
their powers to the State sovereignties, and had nothing more to 
give. But, surely, the question whether they may resume and 
modify the powers granted to government does not remain to 
be settled in this country.^ 

Most of the secession conventions were popular, or even 
spontaneous. Many new States have been admitted to the 
Union under constitutions framed by the people without the 
authority of Congress, but Congress has ratified the illegal 
action in admitting them. 

But the most important precedents for the purposes of the 
present discussion are States, which, although at peace under 
a duly established constitution which did not provide for the 
holding of a constitutional convention, nevertheless held con- 
ventions, the legality of which has not been questioned. 

Jameson mentions twenty-seven such conventions held prior 
to 1887.4 

1 Kamper v. Hawkins (1793), 3 Va. 20, 74.' 
^ Articles of Confederation, Art. XIII. See p. 49, infra. 
3 McCulloch V. Maryland (1819), 4 Wheat. 316, 404. 

* Jameson, p. 210, n. 1. These conventions are as follows: Arkansas, 1874; 
Connecticut, 1818; Georgia, 1833 and 1839; Indiana, 1850; Louisiana, 1852 



40 CONSTITUTIONAL CONVENTIONS 

Dodd reports three more prior to 1908, to wit: Missouri in 
1890, Louisiana in 1898, and Connecticut in 1902.^ Since 1908, 
no popular conventions have been held: but Massachusetts 
is holding one in 1917, and Indiana is to hold one in 1918. 

Jameson has the following to say on the legality of such 
conventions : 

The question of the legitimacy of Conventions thus called, I 
shall have occasion to consider in other parts of this work, when 
treating of the relations of legislatures to Conventions, and of the 
powers of the former resulting from those relations. I shall, 
therefore, here only observe, — 1. That, whenever a Constitution 
needs a general revision, a Convention is indispensably necessary; 
and if there is contained in the Constitution no provision for such 
a body, the calling of one is, in my judgment, directly within the 
scope of the ordinary legislative power; and, 2. That, were it 
not a proper exercise of legislative power, the usurpation has been 
so often committed with the general acquiescence, that it is now 
too late to question it as such. It must be laid down as among 
the established prerogatives of our General Assemblies, that, the 
Constitution being silent, whenever they deem it expedient, they 
may call Conventions to revise the fundamental law.^ 

Cooley and the Supreme Courts of Alabama, Louisiana, and 
North Dakota have also said that, in the absence of any pro- 
hibition in the State constitution, a convention may be lawfully 
held.3 

Dodd says, following Jameson's line of thought: 

It has now become the established rule that where the constitu- 
tion contains no provision for the calling of a convention, but 
has no provision expressly confining amendment to a particular 
method, the legislature may provide by law for the calling of a con- 
vention — that is, the enactment of such a law is within the power 

and 1879; Massachusetts, 1853; Missouri, 1845, 1861, and 1865; New Jersey, 
1844; New York, 1801, 1821, and 1846; North CaroUna, 1835; Pennsylvania, 
1837 and 1872; Rhode Island, 1824, 1832, 1841, and 1842; South Carolina, 
1790; Tennessee, 1870; Texas, 1876; Virginia, 1829 and 1850. To this Hst 
there should probably be added at least the following: Massachusetts, 1820; 
Delaware, 1791 and 1852; Maryland, 1850. 

1 Dodd, p. 44. 

^ Jameson, pp. 210-211. 

3 Cooley, Const. Lims. (7 ed.), p. 56; Collier v. Frierson (1854), 24 Ala. 100, 
108; State v. Am. Sugar Co. (1915), 137 La. 407, 413; State v. Dahl (1896), 
6 N. D. 81. 



POPULAR CONVENTIONS ARE LEGAL 41 

of the legislature unless expressly forbidden, and is considered a 
regular exercise of legislative power.^ 

There are now twelve States which have no express con- 
stitutional provisions for the calling of conventions,^ yet in 
eight of these, to wit, Arkansas, Connecticut, Louisiana, Missis- 
sippi, New Jersey, Pennsylvania, Texas, and Massachusetts, 
conventions have been held without any serious question 
being made as to their legality. 

In Rhode Island the question of holding a convention was 
in 1853 twice submitted to the people, but further submission 
of the question has been effectively discouraged by an adverse 
opinion of the Supreme Court of that State.^ 

In Vermont, the special commission appointed in 1908 to 
present to the next legislature proposals of amendment to the 
constitution, although it proposed some changes in the amend- 
ment clause, nevertheless omitted to propose the convention 
method and yet suggested the possibility of holding a con- 
vention, thus showing that in its opinion express constitutional 
authorization would be unnecessary.^ 

The North Dakota Supreme Court has decided that the un- 
authorized convention would be lawful in that State.^ This 
opinion has recently been reiterated by the Attorney-General 
of that State.^ 

Some doubt has been expressed as to whether the Indiana 
convention of 1850 furnishes a precedent for holding a con- 
vention under the present constitution there. Although the 
constitution then in force authorized the holding of conventions, 
it cannot be considered as authorizing the convention of 1850, 
for the conventions authorized by the constitution were to be 
held in 1828, 1840, 1852, etc. It would seem, however, that it 
is even a stronger disregard of the constitution to hold a con- 
vention whenever you please, under a constitution which says 
you may hold it in 1828, 1840, or 1852, than to hold a conven- 
tion whenever you please, under a constitution which makes no 
mention of conventions; just as it would be more disobedient 

1 Bodd, p. 44. 

2 "Columbia Dig.," p. 21. 

3 Opinion of Justices (1883), 14 R. I. 649. 

4 Report of Jan. 6, 1910, pp. 3, IS. 

5 State V. Dahl (1896), 6 N. D. 81. 

6 N. D. House Journal, Jan. 26, 1917. 



42 CONSTITUTIONAL CONVENTIONS 

for a child to go down-town at 2:00, after obtaining permission 
to go at 3:00, than it would if his parents had never in all his 
life mentioned the subject of going down-town. 

The Supreme Court of Indiana has asserted the legality of 
this convention.^ The present constitution of Indiana contains 
no provision for the holding of conventions, yet one is about 
to be held there in 1918. But it is possible that this State, by 
striking out the convention provision from her constitution, 
manifested an intention never again to have a convention.^ 

Thus we see that in all of the twelve States whose constitu- 
tions are silent on the subject, except Rhode Island, and possibly 
Indiana, conventions can now be held. 

Let us now consider the legal authorities which hold that this 
ought not to be so. 

In several of the conventions of this class, the objection has 
been raised that they were illegitimate bodies because called 
without special authority in the respective constitutions.^ 

But as Jameson points out: 

The objection has commonly been urged by a minority, whose 
party or other interests inclined them to look with disfavor upon 
any change in the existing Constitution.^ 

In spite of the ulterior nature of their motives, however, their 
views have found the way into some textbooks and encyclo- 
pedias. The following is an example : 

The people must act by majorities, and in adopting the consti- 
tution the majority which does so has in effect prescribed the 
method by which the majority of the people may alter or amend it. 
An attempt by the majority to change the fundamental law in 
violation of the self-imposed restrictions is unconstitutional and 
revolutionary.^ 

And, as Jameson says, these objections gain some plausibiHty 
because of the existence of other methods of amending the 
respective constitutions. 

There having been provided, it has been said, a mode in which 
constitutional changes might be effected, it was a violation of legal 

1 Ellingham v. Dije (1912), 178 Ind. 336, 377-378. 

2 N. D. House Journal, Jan. 26, 1917. 

3 Jameson, p. 211, n. 3. 

« Jameson, p. 211. ^ 6 R. C. L., § 16. 



POPULAR CONVENTIONS ARE LEGAL 43 

analogy to infer a power to do substantially the same thing in 
another way, not authorized specifically by the Constitution, ac- 
cording to the well established rule, expressio unius est exclusio 
alteriits.^ 

This was exactly the line of reasoning pursued by the only 
real legal authority against the validity of popular conventions, 
namely, the Supreme Court of Rhode Island. In an opinion 
rendered to the legislature in 1883, this court said: 

The ordinary rule is that where power is given to do a thing in 
a particular way, there the affirmative words, marking out the par- 
ticular way, prohibit all other ways by implication, so that the 
particular way is the only way in which the power can be legally 
executed. 

The mode provided in the Constitution for the amendment 
thereof is the only mode in which it can be constitutionally 
amended. . . . Expressio unius est exclusio alterius. . . . One 
of the greatest of modern jurists, Chief Justice Shaw, was of the 
same way of thinking, and, conjointly with his associates, declared 
it to be his opinion that the Constitution of Massachusetts is 
constitutionally amendable only as therein provided. . . . Any 
law inconsistent with it is void, and, therefore, if the provision 
which it contains for its own amendment is exclusive, implying 
a prohibition of amendments in any other manner, then, of course, 
any act of the Assembly providing for a convention to amend the 
Constitution is unconstitutional and void.^ 

It will be noticed that this opinion apparently cites the Su- 
preme Court of Massachusetts as being of like mind; yet a 
careful analysis of the language used by each court will show 
that the Providence Court does not so cite the Massachusetts 
Court, and that the Massachusetts Court did not so hold. 

Before discussing the Massachusetts opinion itself, however, 
let us first take up another interpretation of it. Attorney- 
General Attwill of Massachusetts, in a legal opinion rendered 
to the legislature of 1917, squarely cites the Massachusetts 
Supreme Court as denying the validity of constitutional con- 
ventions in that State; but having unnecessarily cited the court 
as taking this extreme position, he then proceeds to overrule 
the court by himself taking the opposite extreme position of 
holding that the convention is not only legal, but is expressly 

1 Jameson, p. 211. 2 14 r, i_ 549^ gsj. 



44 CONSTITUTIONAL CONVENTIONS 

authorized by the Massachusetts constitution. The material 
parts of his opinion are as follows: 

If the convention called to revise, alter or amend the Consti- 
tution pursuant to the vote of the people at the last annual elec- 
tion, under Gen. St. 1916, c. 98, is authorized by the provisions of 
our present Constitution, the position of a delegate to the con- 
vention is a "place under the authority of the Commonwealth." 

It has been asserted by many, and seems to have been the opin- 
ion of the justices of the Supreme Judicial Court in an opinion to 
the Legislature (reported in 6 Cush. 573) that article IX of the 
Amendments to the Constitution, providing a method for the 
adoption of specific and particular amendments to our Constitu- 
tion, excluded by implication any authorization to the people to 
revise or change it by the convention method, and this view is 
not unsupported by other authority.^ 

. He then quotes the various provisions of the Massachusetts 
constitution which recognize the right of the people to alter 
their form of government, and continues: 

^ This incontestable, unalienable and indefeasible right, which 
indeed is the essence of a republican form of government, cannot, 
in my judgment, be taken away except by plain and unmistakable 
language. That the people of one generation can deprive the people 
of a succeeding generation of their unalienable right to reform, 
alter or totally change their form of government, except in a re- 
stricted manner, when their protection, safety, prosperity and 
happiness require it, is repugnant to our theory of government, 
that the right to govern depends upon the consent of the governed. 
It seems to me a much more reasonable, if not a necessary, construc- 
tion of the Constitution to hold that article IX of the Amend- 
ments provides only a manner of amending the constitution in addi- 
tion to other methods that may be adopted by the people of 
changing their form of government, under the fundamental right 
guaranteed by the Bill of Rights, whenever "their protection, 
safety, prosperity, and happiness" require it. . . . 

Accordingly, I am of the opinion that the Convention will be 
held under the authority of the Commonwealth.^ 

Thus Attorney-General Attwill, the latest authority on the 
subject, goes to the opposite extreme from the Rhode Island 

1 1917 Mass. House Doc. 1711, p. 2. 

2 1917 Mass. House Doc. 1711, pp. 2-8. 



POPULAR CONVENTIONS ARE LEGAL 45 

Court, and goes further in sustaining the vaHdity of popular 
conventions than any one before him. It would seem that he 
goes unnecessarily far. 

Mr. Attwill's opinion would just as strongly support his 
conclusions (without, however, being as at present a rather 
forced construction of the constitution), if he had changed the 
italicized words (the italics are mine), by substituting for the 
word "authorized" the words "not effectually prohibited,"^ 
and for the word "guaranteed" the word "admitted."^ Read 
over his language with these two words changed. 

Thus we find the Rhode Island Court apparently citing the 
Massachusetts Com-t as deciding that popular conventions are 
unconstitutional and void; and we find Mr. Attwill clearly 
so citing the court, but attempting to overrule it. 

Let us now take up the Massachusetts case itself, and see 
what it really decided. The opinion reads as follows: 

Under and pursuant to the existing Constitution, there is no 
authority given by any reasonable construction or necessary im- 
plication, by which any specific and particular amendment or 
amendments of the Constitution can be made, in any other manner 
than that prescribed in the ninth article of the amendments 
adopted in 1820. Considering that previous to 1820 no mode was 
provided by the Constitution for its own amendment, that no 
other power for that purpose, than in the mode alluded to, is 
anywhere given in the Constitution, by implication or otherwise, 
and that the mode thereby provided appears manifestly to have 
been carefully considered, and the power of altering the Constitu- 
tion thereby conferred to have been cautiously restrained and 
guarded, we think a strong implication arises against the exist- 
ence of any other power, under the Constitution, for the same 
purposes.^ 

It will be noticed that all that this court decided was that 
"under and pursuant to the existing constitution" there is no 
authority for any other method of amendment than the one 

^ See p. 50, infra. 

2 The Bills of Rights cannot guarantee the self-evident rights asserted in the 
Declaration of Independence. As Jameson says: "If the truth in question is a 
self-evident truth, it is one which would obtain equally whether asserted in the 
Constitution .«. . or not." Jameson, p. 236, cf. p. 53, infra. Grinnell, in II 
"Mass. Law Quarterly," p. 275, agrees with the author in the foregoing criticism. 
, 3 6 Cush. 573, 574. 



46 CONSTITUTIONAL CONVENTIONS 

therein provided; in other words, that there exists no other 
method " under the constitution." 

The Rhode Island Court may have recognized this, for it 
cites the Massachusetts Court as holding that " the constitution 
of Massachusetts is constitutionally amendable only as therein 
provided." ^ 

The restrictions placed on their opinion by the Massachu- 
setts Justices will be better understood, if we glance at the 
opening words of that opinion, which are not usually quoted in 
this connection. The legislature had attempted to ascertain 
from the court whether amendments to the constitution could 
be made in any other manner than that prescribed in the con- 
stitution itself. The court avoided making a square answer to 
this question, although it was obvious that what the legislature 
wanted to know was whether they could legally call a conven- 
tion to revise the constitution. The court opened its opinion 
with these significant words : 

The court do not understand, that it was the intention of the 
house of representatives, to request their opinion upon the natural 
right of the people in cases of great emergency, or upon the obvious 
failure of their existing constitution to accomplish the objects for 
which it was designed, to provide for the amendment or alteration 
of their fundamental laws; nor what would be the effect of any 
change and alteration of their constitution, made under such cir- 
cumstances and sanctioned by the assent of the people. Such a 
view of the subject would involve the general question of natural 
rights, and the inherent and fundamental principles upon which 
civil society is founded, rather than any question upon the nature, 
construction, or operation of the existing constitution of the com- 
monwealth, and the laws made under it. We presume, therefore, 
that the opinion requested applies to the existing constitution 
and laws of the commonwealth, and the rights and powers de- 
rived from and under them. Considering the questions in this 
light, etc., etc.^ 

Modern interpretations of this early Massachusetts opinion 
are as follows: 

It was assumed in the opinion, that the opinion requested ap- 
plies to the existing constitution and laws of the Commonwealth 
and the rights and powers derived from and under them, and did 

1 14 R. I. 649, 651. ^ Q Cush. 573, 574. 



POPULAR CONVENTIONS ARE LEGAL 47 

not depend upon the natural right of the people in cases of great 
emergency, or upon the obvious failure of their existing constitu- 
tion to accomplish the objects for which it was designed, to pro- 
vide for the amendment and alteration of their fundamental 
laws.^ 

It was contended that there was precedent for this opinion 
[i. e. the Rhode Island one] in an earlier opinion of the supreme 
court of Massachusetts. A careful study of the opinion of the 
Massachusetts court, however, shows that its opinion related to 
another matter.^ 

Thus the Massachusetts Court recognizes the existence of 
the fundamental principles considered in the second chapter 
of this book, and the existence of a higher authority than that 
of the constitution itself. And although the court speaks of 
this higher right as existing "in cases of great emergency, or 
upon the obvious failure of their existing constitution," ^ yet 
the right has not been limited to such cases in actual practice 
in Massachusetts. 

There the legislature in 1851 and again in 1852, without the 
existence of any emergency, submitted to the voters the ques- 
tion of holding a constitutional convention. On its second 
submission, the question carried, and a convention was held. 

Judge Morton of the Massachusetts Supreme Court, after 
joining with his colleagues in expressing the already cited opin- 
ion that the convention method was unauthorized by the con- 
stitution, ran for the convention of 1853 and took a seat in that 
body. In the course of one of the debates, he said of the 
statute which had called the convention into being that it was 
law because it had been sanctioned by the votes of the people.^ 

The Massachusetts and the Rhode Island courts were perhaps 
right in saying that the existence of one express method for 
amending the constitution, impliedly prohibits the use of any 
other method of amendment; but the Rhode Island Court 
stands alone in drawing from this the conclusion that popular 
conventions are, therefore, invalid. The trouble with the Rhode 

^ Arthur Lord, in II "Mass. Law Quarterly," 1, 24 (1916). 

^ Holcombe, "State Government," p. 95. 

^ The Rhode Island court, even, has recognized the right to hold unauthor- 
ized conventions "ex necessitate." Opinion of Justices (1883), 14 R. I. 649, 
653. 

4 Deb. Mass. Conv. of 1853, Vol. I, p. 76. 



48 CONSTITUTIONAL CONVENTIONS 

Island Court was that it could not conceive of anything not con- 
stitutional being valid.^ 

If the express authorization of the legislative method of amend- 
ment impliedly prohibits the convention method, a fortiori would 
the express authorization of the convention method impliedly pro- 
hibit the holding of a convention in ways not provided for. Yet 
conventions have been successfully held in Georgia in 1788, in 
Indiana in 1850, in Delaware in 1852, in Florida in 1865, and in 
Pennsylvania in 1789, in direct violation of such provisions.^ 

The Supreme Court of Indiana has recently asserted the legal- 
ity of such conventions: 

It may be answered, that the General Assembly, in the action 
taken in those years, made no attempt to assume the power, under 
the general grant of authority to legislate, to formulate a new Con- 
stitution, or to revise the existing one. It merely asked the people 
to express their will in relation to calling a convention to revise 
or amend the Constitution, to be expressed through the ballot, and 
when it was expressed it was a warrant and a command which the 
legislative agency carried out as given. Under such circumstances, 
the calling of a convention, as Jameson in his work shows, is in 
accordance with sound political principles, and a well-recognized 
and established practice. The rule thus established in American 
constitutional law by the evolution of the constitutional convention 
from the two revolutionary' conventions of England in 1666 [sic] 
and 1689, he shows is applicable to states like ours, having a limited 
provision for amendment, through the initiative of the legislature, 
but no provision for a convention for a general revision.^ 

Compare: 

The decided weight of authority and the more numerous prece- 
dents are arrayed on the side of the doctrine which supports the 
existence of this inherent legislative power to call a constitutional 
convention, notwithstanding the fact that the instrument itself 
points out how it may be amended.^ 

Not only have conventions been successfully held without 
question in States whose constitutions either are entirely silent 

^ On extraconstitutional validity, see p. 26, supra. 
^ For descriptions of these conventions, see pp. 51-52, infra. 
5 Ellingham v. Dye (1912), 178 Ind. 336, 377-378. 

4 State V. Dahl (1896), 6 N. D. 81, 87. Op. Atty. Gen., in N. D. House Jour- 
nal, Jan. 26, 1917- 



POPULAR CONVENTIONS ARE LEGAL 49 

as to methods of amendment, or impliedly prohibit this method 
by naming another; but they have been even held in States 
whose constitutions expressly prohibit them. 

•In Delaware, where the constitution of 1776 provided that 
the constitution should not be " altered, changed or diminished, 
without the consent of five parts in seven of the assembly, 
and seven members of the legislative council," the legislature 
of that State in 1791 called a constitutional convention in spite 
of the provision that the constitution should be altered in 
only one way.^ 

So also the Maryland legislature called the convention of 
1850, although the constitution of 1776 specifically provided 
that the constitution should be altered only by a bill passed 
by two successive general assemblies of that State. ^ The 
Georgia constitution of 1798 contained a provision with 
respect to amendment similar to that in the Maryland con- 
stitution of 1776, but in this State also conventions were 
nevertheless held, namely, in the years 1833 and 1839.^ 

To these four examples of the legal holding of a constitutional 
convention, although expressly prohibited by the constitution, 
may be added the convention which framed the Constitution 
of the United States, as this convention was expressly prohib- 
ited by the following language in the Articles of Confederation: 

The articles of this Union shall be perpetual; nor shall any 
alteration at any time hereafter be made in any of them; unless 
such alteration be agreed to in a Congress of the United States, and 
be afterwards confirmed by the Legislature of every State.* 

The Rhode Island Supreme Court said in the already-cited 
opinion that "an implied is as efl^ectual as an express pro- 
hibition.^ The court might well have said: "An express 
prohibition is as zneffectual as an implied." 

These five examples apparently completely dispose of Mr. 
Attwill's theory that popular conventions derive their validity 
through being expressly authorized by the constitution. Would 
not a better view be that the various Bills of Rights admit the 
existence of a higher power than the constitution, to wit, the 

^ Jameson, pp. 214-215. ^ Jameson, pp. 215-216. 

3 Dodd, p. 44, n. 28. * Art. XIII. 

5 Opinion oj Justices (1883), 14 R. I. 649, 654. 



50 CONSTITUTIONAL CONVENTIONS 

will of the people; rather than that they graciously grant to 
succeeding generations a privilege which it would be in their 
power to withhold. 

The Supreme Court of Massachusetts has recently refused 
to pass on the question of whether popular conventions are 
legal, and if so, whether they are held under the constitution; 
saying merely that if they are held under the constitution, 
such and such is the law. They say: 

The validity and the powers of this convention are not neces- 
sarily involved in these questions. ... If the convention to revise 
and alter the Constitution is held under the Constitution, it is 
because the people of the Commonwealth have under the Con- 
stitution the right to alter their frame of government according to 
orderly methods as provided by law, and through the medium of 
an act of the Legislature.^ 

But even if these provisions in Bills of Rights may be con- 
sidered as expressly granting such a power to the people, they 
may be regarded as in much the same position as the man who 
was trying to show his authority over his dog by ordering him 
to sit up and beg. The dog refused to obey. Finally the man, 
still determined to show his authority, cried out : " Well, then, 
lie down! I will be obeyed!" If the constitution really does 
authorize the convention, this authorization is immaterial; for 
the constitution, as we have seen, would have no power to pro- 
hibit it. 

This view may be carried still further to apply to even those 
constitutions which expressly authorize the holding of a con- 
vention. If these constitutions, too, would have no power to 
prohibit the convention, their authorization of it is at the most 
the mere providing of a means for the expression of a superior 
popular right.^ Most of the constitutions concede the right 
of the people to be at least consulted before a convention is 
held. 

Thus the popular nature of even expressly authorized con- 
ventions is now generally recognized in practice, if not in theory. 
That the constitution is merely helping out a superior right, 
rather than granting a privilege to the people, is shown by the 

1 1917 Mass. Senate Doc, 512. 

^ A similar argument was successfully used in a contested election case in the 
Illinois convention of 1862. See p. 185, infra. 



POPULAR CONVENTIONS ARE LEGAL 51 

fact that the people may accept so much of the constitutional 
assistance as they wish, and may disregard the constitutional 
limitations. Delaware furnishes us an example of this. 

The Delaware constitution of 1831 provided that no con- 
stitutional convention should be called except by authority 
of the people, and that the only way to obtain this authority 
would be to take a vote on the third Tuesday of May of any 
year and obtain the affirmative vote "of a majority of all the 
citizens of the state having a right to vote for representatives." 
Acting under this provision of the constitution, the general 
assembly in 1851 passed an act to take the vote of the people. 
At the election held under this act a majority of the votes cast 
were in favor of a convention, but the number was not sufficient 
to constitute a majority of all citizens who had a right to vote 
for representatives. Nevertheless the legislature declared that 
the question had carried and passed another act calling a 
convention.^ 

If the constitution of Delaware could effectively limit the 
right of the people to call a convention, then this convention 
was illegal and void. If, on the other hand, the people can 
lawfully disregard the constitution even in cases where the 
constitution provides for a convention, then this convention 
was valid. The question arose in the convention itself, and the 
majority opinion of the delegates was that the clause of the 
constitution was merely recommendatory, not peremptory.^ 

Similarly with respect to the Indiana convention of 1850. 
The Indiana constitution in 1816, then in force, authorized 
the calling of a convention every twelfth year, but a convention 
was held within one of the twelve-year periods, and was never 
questioned.^ 

The Pennsylvania convention of 1789 also belongs in this 
class. The constitution then in force in that State provided 
that it should be amended only in a manner therein directed, 
namely, by a convention called by the council of censors. An 
attempt was twice made to obtain a majority of the censors 
in favor of calling a convention, but both attempts failed. 
Finally, just prior to the sitting of the next council, the gen- 
eral assembly took the matter into its own hands by obtaining 

^ Jameson, p. 209, n. 1. ^ Jameson, p. 209, n. 1. 

^ Jameson, p. 210, n. 1. 



52 CONSTITUTIONAL CONVENTIONS 

a popular expression of opinion on the expediency of holding 
a convention. This was done by an informal canvass during 
a recess of the legislature. The result satisfied the members 
that the people wished a convention, and one was accordingly 
called, which framed and established the constitution of 1790.^ 

Similarly with respect to the series of Georgia conventions in 
1788-1789. The constitution of 1777, then in force, authorized 
a convention upon the petition of a majority of the voters of 
a majority of the counties. The legislature disregarded this 
provision and appointed a convention in 1788 to draft a new 
constitution. The people elected delegates to a convention in 
the fall of that year which modified the constitution drafted 
by the first convention and submitted it to a third convention 
elected by the people in 1789.^ Yet Jameson refers to the 
"regularity" of this procedure.^ 

Similarly with respect to the Florida convention of 1865. 
The constitution of 1838 of that State provided that "no con- 
vention of the people shall be called, unless by the concurrence 
of two thirds of each House of the General Assembly." Yet 
the Florida constitution of 1865 was drawn by a convention 
called by the Governor, and was sustained by the Supreme Court 
of the State.^ 

These five examples would seem to establish the principle 
that conventions, even when expressly authorized by the con- 
stitution, are nevertheless popular in their nature, and have 
pretty much the same standing as though the constitution had 
been silent on the subject. In other words, constitutional 
provisions permitting the holding of conventions are, like 
legislative acts on the subject, merely recommendatory to the 
people. 

Thus we come back to the fact that all conventions are valid 
if called by the people speaking through the electorate at a 
regular election. This is true, regardless of whether the con- 
stitution attempts to prohibit or to authorize them, or is merely 
silent on the subject. Their validity rests not upon constitu- 
tional provision nor upon legislative act, but upon the funda- 
mental sovereignty of the people themselves. 

1 Jameson, pp. 213-214. 2 Dq^^ p. 42. 

2 Jameson, p. 135. 

4 Bradford v. Shine (1871), 13 Fla. 393, 415. 



POPULAR CONVENTIONS ARE LEGAL 53 

Judge Jameson makes an interesting attempt to reconcile 
his theory of legislative supremacy with the fundamental 
principles from which he, as an able jurist, is unable to escape. 
It may prove instructive to analyze his views on this point. 

He says as follows: 

Revolution can never be resorted to under the Federal Con- 
stitution, or under any other Constitution, legally; but, when the 
evils under which a commonwealth languishes, become so great as 
to make revolution, including insurrection and rebellion, less in- 
tolerable than an endurance of those evils, it will be justifiable, 
although the Federal relations of that conunonwealth may be such 
as to array against her forces vastly greater than they would be 
were she and the other States independent and isolated com- 
munities. The right of revolution stands not upon the letter of 
any law, but upon the necessity of self-preservation, and is just as 
perfect in the single man, or in the petty State, as in the most 
numerous and powerful empire in the world. This right, the 
founders of our system were careful to preserve, not as a right 
under, but, when necessity demanded its exercise, over our Con- 
stitutions, State and Federal. 

Thus, the Declaration of Independence affirms, "that whenever 
any form of government becomes destructive " of the ends of govern- 
ment, "it is the right of the people to alter or abolish it, and to 
institute a new government, laying its foundation on such principles, 
and organizing its powers in such form as to them shall seem most 
likely to effect their safety and happiness." 

Not only so, but it classes this affirmation among the~ self-evident 
truths: "We hold these truths to be self-evident." 

Now, no truth can be self-evident, which becomes evident only 
under particular conditions, as when it is deducible only from the 
construction of legal instruments, or from the provisions of some 
positive code. It must be a truth independently of such conditions, 
as would be indispensable to give it rank as a legal truth. If the 
truth in question is a self-evident truth, it is one which would 
obtain equally whether asserted in the Constitution and laws or not. 

The second class of documents consists in the Bills of Rights of a 
large number of our Constitutions, containing broad general asser- 
tions of the right of a people to alter or abolish their form of govern- 
ment, at any time, and in such manner as they may deem expedient. 
The peculiarity of these documents is, that they seem to assert 



54 CONSTITUTIONAL CONVENTIONS 

the right in question as a legal right; at least, they furnish a 
plausible argument for those who are willing to have it believed that 
the right is a legal one; when, in fact, it is a revolutionary right. 
The framers of those Constitutions generally inserted in them 
provisions for their own amendment. Had nothing further been 
said, it might have been inferred, that no other mode of securing 
needed changes was under any circumstances to be pursued, but 
that prescribed in those instruments. Such, however, was not the 
intention of their framers. They meant to leave to the people, 
besides, the great right of revolution, formally and solemnly as- 
serted in the Declaration of Independence. They, therefore, 
affirmed it to be a right of the people to alter or abolish their 
Constitutions, in any manner whatever; that is, first, legally, in 
the mode pointed out in their Constitutions, or by the customary 
law of the land; and secondly, illegally, that is, for sufScient causes, 
by revolutionary force.^ 

Judge Jameson lays down these fundamental principles 
absolutely correctly. He recognizes that a change of govern- 
ment under the fundamental right of the people is a right over 
our constitutions rather than a right under them. In other 
words, it is an extraconstitutional or supraconstitutional. right, 
rather than a constitutional right. He recognizes that the 
self-evident truths laid down by the Declaration of Independ- 
ence and the Bills of Rights would obtain equally, whether 
asserted in the constitution or not. In other words, con- 
stitutions do not guarantee these rights; they merely admit 
them. 

Where he errs is when he tries to apply these principles to his 
preconceived theory. He divides conventions into merely two 
classes, i. e. legal and revolutionary. This classification would 
fit very nicely were it not for the existence of the four cases 
already referred to, in which conventions were held in the very 
teeth of prohibitory provisions in the existing constitutions. 
Jameson himself refers to three of these conventions, and admits 
that they were wholly illegitimate in their origin. He goes on to 
say: 

It is obvious, that to justify such proceedings, on legal grounds, 
would be to take away from the fundamental law that character- 
istic quaUty by which it is the law of laws — the supreme law of 

^ Jameson, pp. 235-236. 



POPULAR CONVENTIONS ARE LEGAL 55 

the land. If it be not the supreme law, for all the purposes of a 
Constitution, in the American sense, it might as well be a piece 
of blank paper. . . . 

There is in my judgment, no way in which the action of those 
bodies, in those cases, can be justified, except by affirming the legal 
right of the inhabitants of a given territory, organized as a body 
politic, to meet at will, as individuals, without the authority of 
law, and, on their own claim that they are the people of the State, 
to dictate to the government such changes in its laws. Constitution, 
or policy, as they may deem desirable.^ 

Thus Jameson has to classify these conventions as merely 
spontaneous, although forced to admit at least their de facto 
validity. Is it not simpler to classify these conventions, together 
with conventions held in the absence of any mention in the 
constitutions, as in a class standing halfway between con- 
stitutional cases and cases in which the convention requires 
armed force for its assistance? In other words, the following 
out of the fundamental principles, as laid down by Jameson 
himself, forces us to the classification adopted at the opening 
of Chapter III, namely, authorized conventions, popular con- 
ventions, and spontaneous conventions. 

Judge Walker, in the latest edition of his monumental work 
on American law, has this to say relative to popular sovereignty: 

This indeed is self-evident, since all power comes from the 
people. They have created the government, and may destroy it, 
when it ceases to satisfy them. Delegated power, as above stated, 
is not irrevocable. . . . But it is needless to enlarge upon the 
general right of revolution. It must of necessity exist, whenever 
a majority desire it, even though the existing government should 
be in terms made perpetual, as some of the provisions in our con- 
stitutions are declared to be.^ 

Judge Jameson's description of legitimate revolution, quoted 
a little way back,^ fits exactly the great class of conventions 
which the present author has denominated "popular," and 
which Jameson himself admits are not authorized by any con- 
stitution. Following his definition, we may assume that popular 
conventions are extra- or supra-constitutional. 

^ Jameson, p. 217. 

^ Walker, American Law (11 ed.), p- 231. 

^ Jameson, p. 235. See pp. 53-54, supra. 



56 CONSTITUTIONAL CONVENTIONS 

As he himself punningly puts It, the right of the people to 
change their government Is not a right under the constitution, 
but Is rather a right over the constitution.^ 

Or to quote from the Supreme Court of Virginia in an early 
decision: 

The convention of Virginia had not the shadow of a legal, or 
constitutional form about it. It derived its existence and authority 
from a higher source; a power which can supersede all law, and 
annul the constitution itself — namely, the people, in their sovereign, 
unlimited, and unlimitable authority and capacity.^ 

Or from the Supreme Court of New York: 

Neither the calling of a convention, nor the convention itself 
is a proceeding under the constitution. It is over and beyond 
the constitution.^ 

It Is true, however, that the Rhode Island Supreme Court 
and Dodd can be cited In opposition to this idea of a sanction 
above and superior to the constitution. 

Dodd says that the convention Is in no sense an extraconstl- 
tutlonal body.^ But that statement may very well be true 
with respect to conventions in his State, Maryland, fwhere 
the constitution expressly authorizes them; without, however, 
being at all true with respect to popular conventions. 

The Rhode Island Court says: 

Finally, it has been contended that there is a great unwritten 
common law of the states, which existed before the Constitution, 
and which the Constitution was powerless to modify or abolish, 
under which the people have the right, whenever invited by the 
General Assembly, and as some maintain, without any invitation, 
to alter and amend their constitutions. If there be any such law, 
for there is no record of it, or of any legislation or custom in this 
State recognizing it, then it is. In our opinion, rather a law, if law 
it can be called, of revolutionary than of constitutional change. 
Our Constitution is, as already stated, by its own terms, the supreme 
law of the State. We know of no law, except the Constitution 
and laws of the United States, which Is paramount to It.^ 

^ Jameson, p. 235. 

2 Kamper v. Hawkins (1793), 3 Va. 20, 74. 

3 Journal, 69th N. Y. Assembly, p. 919. 

4 Dodd, p. 72. 

6 Opinion of Justices (1883), 14 R. I. 649, 654. 



POPULAR CONVENTIONS ARE LEGAL 57 

But we must take into consideration the fact that the court 
were undoubtedly influenced by a recollection of Dorr's Re- 
bellion, and so denied not only the existence of any such thing 
as extraconstitutional law, but also the validity of the popular 
convention, which even Dodd admits. 

This is also admitted by the Declaration of Independence and 
practically all of the various American Bills of Rights.^ 

Thus we may conclude that although popular conventions 
are not constitutional, it does not necessarily follow from this 
that they are void, although the Rhode Island Supreme Court so 
contends.^ They are really authorized by a power above the 
constitution, to wit, the sovereignty of the people, and hence 
are supraconstitutional and perfectly valid.^ 

^ See pp. 12-14, supra. 

2 Opinion of Justices (1883), 14 R. I. 649. 

^ Frank W. Grinnell, one of the ablest of the ultra-conservative members of 
the Massachusetts bar, has an article in No. 4 of Vol. II of the "Massachusetts 
Law Quarterly" (pp. 274-280) (appearing too late to quote in this book), in 
which article he too asserts the extraconstitutionality of conventions which are 
not expressly mentioned in the constitution. On the general subject of this 
chapter, see particularly " Methods of Changing the Constitutions of the States, 
Especially that of Rhode Island," by Charles S. Bradley, ex-Chief Justice of 
the Supreme Court of Rhode Island. Boston, 1885. 



Chapter V 
WHO CALLS THE CONVENTION? 

Whethee the legislature has the power to amend the act 
by which a convention is called is an important question to be 
treated later in this book. It depends in part upon a considera- 
tion of whether it is the legislature or the people who originally 
enacted that act. In fact, the whole matter of the status of the 
convention and of its members depends to some extent upon 
a solution of this problem, to which this chapter will accordingly 
be devoted. 

First let us eliminate certain types of convention to which 
this discussion does not properly relate. Since the introduction 
of the initiative and referendum in the West and Middle 
West, not only may constitutional amendments be made in 
twelve States by an initiative petition without the interposi- 
tion of either the legislature or a convention;^ but also in six 
additional States, the people can initiate and adopt a measure 
providing for the holding of a convention; and may, by referen- 
dum, veto any statutes by which the legislature attempts to 
interfere with a convention.^ In all of these States except Ar- 
kansas, Maine, and North Dakota, the constitutions provide that 
legislative acts for the calling of a convention must be referred 
to the people; ^ and in these three under the referendum, the 
people can compel the reference of this question to them. Thus 
in these States the convention is entirely, absolutely, and un- 
questionably within the control of the people, and hence owes 
nothing of its authority to the legislature. 

So, too, if we adopt the theory that conventions which are 

^ These States are Arizona, Arkansas, California, Colorado, Michigan, Mis- 
souri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, and Oregon. "Co- 
lumbia Digest," p. 771. 

2 These States are Idaho, Maine, Montana, South Dakota, Utah, and 
Washington. "Columbia Digest," p. 771. 

3 "Columbia Digest," p. 21. 



WHO CALLS THE CONVENTION? 59 

expressly authorized by the constitution derive their authority 
from that document rather than from the people, we may dis- 
regard such cases for the purposes of this discussion. 

Most of the constitutions which contain provisions for the 
calling of conventions now provide that they be called after 
the legislature has submitted the question of a convention to the 
people and has obtained their approval, such a popular vote to 
be taken whenever the legislatures themselves may think proper. 
The first provisions of this character were those contained in 
the Delaware constitution of 1792,^ the Tennessee constitution 
of 1796,^ the Kentucky constitution of 1799,^ and the Ohio 
constitution of 1802."* The Kentucky provision of 1799, which 
was substantially repeated in the constitution of 1850, threw 
great obstacles in the way of calling a convention, by requiring 
two successive popular votes; but this plan was not followed by 
other States except in the one case of the Louisiana constitution 
of 1812.^ The Kentucky constitution of 1891 discarded the 
requirement, but does require the vote of two successive gen- 
eral assemblies to propose the question to the people.^ The 
plan of permitting the legislature at its discretion to submit to 
the people the question of calling a constitutional convention, 
has for many years been the most popular one, and is now 
in force by the constitutions of twenty-five States.^ 

Some States do not even leave it to the discretion of the legis- 
lature as to when the people shall vote on the question of calling 
a convention, but specifically provide by their constitutions 
that popular votes shall be taken at definite intervals. There 
are now six States which require the periodical submission of 
this question.^ The constitutions of four of these permit the 
legislature to submit the question to the people at other than 
the regular periodical times.^ 

1 Thorpe, Vol. 1, p. 580. 2 Thorpe, Vol. 6, p. 3421. 

3 Thorpe, Vol. 3, p. 1288. « Thorpe, Vol. 5, p. 2908. 

5 Thorpe, Vol. 5, p. 1390. _ _ ^ Thorpe, Vol. 5, p. 1355. 

^ These States are Alabama, California, Colorado, Delaware, Florida, Idaho, 
Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, Nebraska, Nevada, 
North Carolina, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vir- 
ginia, Washington, West Virginia, Wisconsin, and Wyoming. "Columbia 
Digest," pp. 22-23. 

^ These States are : Maryland, New Hampshire, Iowa, Michigan, New York, 
and Ohio. " Columbia Digest," p. 22. 

^ Iowa, Michigan, New York, and Ohio. "Columbia Digest," p. 22. 



60 CONSTITUTIONAL CONVENTIONS 

The Oklahoma constitution requires the legislature to sub- 
mit the question at least once in every twenty years, leaving the 
particular time to the legislature's discretion.^ 

Thus the practice of obtaining the popular approval for the 
calling of a convention may be said to have become almost 
the settled rule. Thirty-two State constitutions require such a 
popular expression of approval, and even where it has not been 
expressly required, such a popular vote has been taken in a 
majority of cases in recent years.^ 

Maine and Georgia are the only States whose constitutions 
now provide for the holding of a constitutional convention, 
without also containing a provision for first obtaining the ap- 
proval of the people.^ 

In the case of these States it may be argued that the conven- 
tion derives its authority from the legislature alone; although 
in the case of Maine it may well be argued that the convention 
derives its authority from popular acquiescence, as manifested 
in the failure of the people to circulate a referendum petition; 
and in both cases it might possibly be argued (on the analogy 
of the Pennsylvania decision to be discussed a little later in this 
chapter) that the people ratify the legislative statute by par- 
ticipating in the election of delegates under it. 

In the case of the thirty-two State constitutions which require 
a popular vote in advance of calling the convention, it may be 
contended that the people call the convention under a permission 
graciously conferred on them by the constitution, but the Dela- 
ware, Indiana, Pennsylvania, Georgia, and Florida cases discussed 
in the last chapter,^ in which cases valid conventions were held in 
open disregard of constitutional provisions relative to the manner 
of holding conventions, lend weight to the theory that a con- 
vention authorized by the constitution stands upon no different 
footing with respect to the source of its authority, than a con- 
vention which is not so authorized, or than one which is even 
prohibited. 

As we saw, when discussing fundamental principles in Chapter 
II, if conventions are beyond the jurisdiction of the constitu- 
tion, it matters not whether the constitution attempts to pro- 

1 "Columbia Digest," p. 22. ^ gge infra, p. 66. 

' "Columbia Digest," p. 21. * Supra, pp. 51-52. 



WHO CALLS THE CONVENTION? 61 

Libit or to authorize them, or is silent on the subject; all such 
conventions are supraconstitutional.^ 

Nevertheless, the New Hampshire Supreme Court has said 
that where a convention is authorized by the constitution, it 
becomes an ordinary legislative matter to call the convention 
and arrange the details.^ The question of who calls the conven- 
tion was not, however, before the court. 

This brings us to that class of conventions, the discussion of 
which is the chief object of this book, namely, conventions 
held under the authority of supraconstitutional fundamental 
law. 

When the legislators, acting as the representatives of the 
people, call such a convention without first submitting the ques- 
tion to their constituents, it is clear that in the absence of any 
other controlling circumstance, the convention owes its existence 
to the legislature. But there is some doubt as to whether the 
legislature can legally call a convention without obtaining the 
popular permission.^ 

When the legislature submits to the people the question 
of holding a convention, there is much disputed authority and 
precedent as to whether the convention act is enacted in whole, 
in part, or at all, by the people. There are two classes of cases 
for us to consider: (1) those in which the convention act is 
passed prior to the submission of the question to the people, and 
(2) those in which the people first express their opinion and then 
the legislature calls the convention. Let us first consider the 
former class of cases. 

This question is to some extent wrapped up in the question of 
the power of the legislature to amend the convention act, to be 
discussed in a later chapter,^ and the two questions have been 
more or less confused by the courts and textbook writers. 
The author will endeavor, however, to disentangle them. 

We saw, in the preceding chapter, that Jameson justified 
the legality of popular conventions on the ground that "the 
calling of one is, in my judgment, directly within the scope of 
the ordinary legislative power." ^ 

^ Supra, p. 26. 

2 Opinion of Justices (1911), 76 N. H. 586, 587. 

^ See pp. 66-68, infra. 

* See Chapter VIII, infra. 

^ Supra, p. 40. Jameson, p. 211. 



62 CONSTITUTIONAL CONVENTIONS 

And Dodd follows him with, "The enactment of such a law 
... is considered a regular exercise of legislative power." ^ Dodd 
has somewhat modified his views since he wrote the last quota- 
tion, as is shown by the fact that in a more recent article of his 
he omits to make any such statement.^ Jameson's idea raises 
at once the question as to whether the calling of a convention is 
within the powers of a legislature at all; for if not, that settles 
the question of the authorship of the convention act. This is 
exactly the line of reasoning pursued by the New York Supreme 
Court, which said: 

The legislature is not supreme. It is only one of the instruments 
of that absolute sovereignty which resides in the whole body of the 
people. Like other departments of the government, it acts under a 
delegation of powers; and cannot rightfully go beyond the limits 
which have been assigned to it. This delegation of powers has been 
made by a fundamental law, which no one department of the govern- 
ment, nor all the departments united, have authority to change. 
That can only be done by the people themselves. A power has 
been given to the legislature to propose amendments to the Con- 
stitution, which, when approved and ratified by the people, become 
a part of the fundamental law. But no power has been delegated 
to the legislature to call a convention to revise the Constitution. 
That is a measure which must come from, and be the act of the 
people themselves.^ 

Compare Thompson, speaking in the Virginia convention of 

1829: 

No one ever supposed that the Acts to take the sense of the 
people, and to organize a Convention, were Acts of ordinary legis- 
lation; or, properly speaking, Acts of legislation at all, as little so 
as an election by that body of any officer. . . . The truth is, the 
action of the ordinary legislature on this subject ... is not of the 
character of ordinary legislation. It is in the nature of a resolve 
or ordinance adopted by the agents of the people, not in their 
legislative character, for the purpose of collecting and ascertain- 
ing the public will, both as to the call and organization of a Con- 
vention and upon the ratification or rejection of the work of a 
Convention. 

1 Dodd, p. 44. 

^ I "Cyc. American Government," 427. 

^ Journal, 69th N. Y. Assembly, p. 919. This opinion was approved in full 
by a committee headed by Elihu Root, in a report to the New York Convention 
of 1894. Rev. Record, Vol. I, pp. 258-260, 270. 



WHO CALLS THE CONVENTION? 63 

It being a matter of interest to know what the acts were, if 
not acts of legislation, the speaker thus explained his views on 
that subject: 

The Acts spoken of were called for by their constituents, resulted 
from the necessity of the case, and were justified by that supreme 
and paramount law, the solus populi. In short, they supplied 
the only mode by which the original right of the people to meet in 
full and free Convention to reform, alter, or abolish their form of 
government, could be exercised without jeopardizing the peace, 
tranquillity, and harmony of the State.^ 

And compare the following from the Supreme Courts of 
South Carolina, Michigan, North Dakota, Massachusetts, 
and Indiana respectively: 

The legislature in passing the act for calling together the con- 
vention, were not acting in their legislative capacity. The act has 
no relation to the general powers of legislation.^ 

Nowhere in article 4, entitled "Legislative Department," is 
any reference made expressly or impliedly to amendments or re- 
visions of the Constitution. Only by section 2, article 20, has the 
legislature any power to act upon a revision of the Constitution. 
The power there conferred is ministerial rather than legislative. 
But the name is immaterial. It does not require the approval of 
the governor to make it valid. It is made the sole agency by which 
the people may determine (1) whether they desire a revision, and 
(2) if they decide that they do, to provide for the election of 
delegates.^ 

That it did not take the form of an ordinary law is too clear for 
controversy. The joint resolution has no title. Its enacting clause 
is not couched in the language prescribed by the constitution to be 
employed in the enactment of ordinary laws; nor was it ever sub- 
mitted to the governor for approval. Whenever it is necessary 
that the expression of sovereign will should take the form of ordi- 
nary legislation, these requirements must be strictly observed. 
But, in declaring its purpose that a specific proposition should 
be submitted to the people for their approval or disapproval, the 
legislature is not discharging the ordinary function of enacting 
laws.^ 

1 Jameson, pp. 579-580. 

2 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 271. 

3 Carton v. Secy, of State (1908), 151 Mich. 337, 341. 
« State V. Dahl (1896), 6 N. D. 81, 82. 



64 CONSTITUTIONAL CONVENTIONS 

The Constitution has vested no authority in the legislature in 
its ordinary action to provide by law for submitting to the people 
the expediency of calling a Convention of delegates for the purpose 
of revising or altering the Constitution of the Commonwealth.^ 

In assuming to legislate in relation to structural changes in 
the government, the legislature is not acting within the power 
it takes under the general grant of authority to enact, alter and 
repeal laws under and pursuant to the Constitution.^ 

Compare Dodd : " The process of amendment is a process of 
superior legislation."^ 

Now, if a convention act is not ordinary legislation, does it 
not therefore verge on being a "fundamental law"? Jameson 
has himself pointed out that : 

Of the power of the people to enact fundamental laws there is 
not only no doubt, but it is clear that no other body has power to 
enact them, except by express warrant for the particular occasion.^ 

And compare Braxton: 

The People alone have the power of enacting or changing the 
Fundamental Law; . . . from them alone does the Convention 
derive its powers in that regard.^ 

These quotations ought to be sufficient to differentiate the 
passage of ordinary laws from the passage of laws which verge 
on the fundamental. 

Another point which bears strongly on this is that although 
the legislature of Massachusetts, prior to the adoption of the 
XLII Amendment, could not lawfully refer to a popular vote 
any question within the legislature's own legislative powers,^ 
yet the legislature could lawfully refer to a popular vote, a 
statute calling a constitutional convention, thus showing that 
such a statute is not within the legislative powers of the legis- 
lature, but is within the legislative powers of the electorate.'^ 

1 Opinion of Justices (1833), 6 Cush. 573, 574-575. 

2 Ellingham v. Dye (1912), 178 Ind. 336, 357. 

3 Dodd, p. 232. 

* Jameson, p. 395, n. 1. 
B Braxton, VII "Va. Law Reg.," 100, 101. 

^ Opinion of Justices (1894), 160 Mass. 586, 589. See also Jameson, pp. 
420-421, and n. 1. 

^ This was successfully done in 1819 and 1852. 



WHO CALLS THE CONVENTION? 65 

A still further consideration is as follows: If it be the legis- 
lature which enacts the convention act and thus calls the 
convention into being, then the legislature can confer on another 
body (i. e. the convention) a power {i. e. to propose a con- 
stitution) which the legislature itself does not possess;^ which 
is absurd.^ 

The most recent court decision on the subject might appear, 
from the following language, to agree with Jameson's original 
idea that a convention act is ordinary legislation : 

In the absence of any provision in the Constitution on the sub- 
ject it seems that the legislature alone can give validity to a con- 
vention. See 6 R. C. L., § 17, p. 27.^ 

But when we look up the court's reference to R. C. L., a 
different face is put on the matter, for R. C. L. says: 

In the absence of any provision in the constitution on the sub- 
ject, it seems that the legislature alone can give legality to a con- 
vention. Where a change in the constitution is made under pro- 
ceedings initiated by the legislature it is not because the legislature 
possesses any inherent power to change the existing constitution 
through a convention, but because it is the only means through 
which an authorized consent of the whole people, the entire state, 
can be lawfully obtained.* 

And later, in the court decision itself, it is held that the 
particular convention referred to was the creature of the 
people.^ 

Thus, regardless of whether the legislature may all by itself 
legally call a convention, it is clear that the weight of authority 
is against the view that the calling of a convention is among 
the regular legislative powers. 

Judge Cooley does not ascribe to the regular legislative pow- 
ers the right to institute convention proceedings, but rather 
ascribes this right to the fact that some department must start 
the ball rolling and that the legislature is the best fitted for this, 
being nearest the people.^ 

^ See p. 85, infra. 

^ Senator Niles, in Jameson, p. 196. 

3 State V. American Sugar Co. (1915), 137 La. 407, 413. 

« 6 R. C. L., § 17, p. 27. 

6 State V. American Sugar Co. (1915), 137 La. 407, 415. 

6 Cooley, Const. Lims. (7 ed.), pp. 56, 59-60. 



66 CONSTITUTIONAL CONVENTIONS 

The Massachusetts Supreme Court in its recent opinion says 
that if the convention is held under the constitution (which 
we have seen it is not), the people have a right to proceed 
through the medium of an act of the legislature. But they 
do not state whether or not this act becomes the act of the 
people.^ 

It is undoubted that conventions have in the past been 
called by legislatures without advance permission from the 
voters, but the growing tendency has been to first take a popular 
vote.^ 

Thus Jameson, although he is the chief exponent of the 
doctrine of absolute legislative supremacy, says: 

The intervention of the legislature is necessary to give a legal 
starting-point to a Convention, and to hedge it about by such re- 
straints as shall ensure obedience to the law; but as a Convention 
ought to be called only when demanded by the public necessities, 
and then to be as nearly as possible the act of the sovereign body 
itself, it would seem proper to leave the matter to the decision of 
the electoral body, which stands nearest to the sovereign, and 
best represents its opinion. Such seems to be the prevailing senti- 
ment in most of the States.^ 

And in New York in 1820 a convention act was vetoed for 
the following reasons: 

It is worthy, therefore, of great consideration, and may well be 
doubted, whether it belongs to the ordinary legislature, chosen only 
to make laws in pursuance of the provisions of the existing Con- 
stitution, to call a Convention in the first instance, to revise, alter, 
and perhaps remodel the whole fabric of the government, and 

1 1917 Mass. Senate Doc. 512. 

2 Bodd, pp. 46-47, and n. 36; Jameson, p. 210, and n. 1. Jameson's note 
does not [differentiate between conventions called with, and those called with- 
out, popular permission. Dodd's note is inaccurate. Of the conventions cited 
by them, the author has only been able to find that the following were called by 
the legislature acting alone: New York, 1801; Connecticut, 1818; Rhode Island, 
1824, 1834, 1841 and 1842; New Jersey, 1844; North Carolina, 1876; Louisiana, 
1879; Mississippi, 1890; and a majority of the secession and reconstruction con- 
ventions. The New York convention came so shortly after the Revolution as 
to be almost a War convention. Those of Connecticut and Rhode Island were 
called by charter legislatures with imlimited powers. The New Jersey consti- 
tution of 1776 was amendable by the legislature. The rest of the conventions 
were Southern, doubtless based on Civil War precedents. 

' Jameson, p. 111. 



WHO CALLS THE CONVENTION? 67 

before they have received a legitimate and full expression of the 
will of the people that such changes should be made.^ 

Compare the following: 

That in the opinion of this Convention, without intending 
to call in question the motives of the members of the Legis- 
lature, by the call of this Convention, the Legislature, at its late 
extraordinary session, was unauthorized by the people; and that 
said act, in peremptorily ordering a Convention of the people of 
the State, without first submitting to them the question whether 
there should be a Convention or no Convention, was an un- 
warranted assumption of power by the Legislature; at war with 
the spirit of republican institutions, an encroachment upon the 
rights of the people, and can never be rightfully invoked as a 
precedent.^ 

, . . the agents of the people, who have not been selected on that 
particular issue, should not take upon themselves the responsibility 
of burdening the people with the expense of such a movement, 
without first submitting to them the question of whether they de- 
sire such a convention to be called. The argument against the 
taking of the initiative by the legislature in such cases, without first 
ascertaining public sentiment on the question, is so strong, and 
lies so plainly on the surface, that in many states the constitution, 
in terms, requires the submission of the proposition to popular 
vote, and a majority vote in its favor, before the legislature can 
legally summon the people to meet in convention to revise their 
organic law.^ 

The coming Indiana convention of 1918 sharply diverges 
from this tendency, for the legislature passed the convention 
act, not only without popular permission, but actually in the 
teeth of a popular refusal.^ The legislature of 1913 submitted 
to the electorate the question of calling a convention, and the 
electorate overwhelmingly voted in the negative. Neverthe- 
less, the legislature went right ahead, just as though they had 
obtained the authority from a favorable vote,^ and passed the 
convention act of 1917. But the courts of Indiana are prone 

^ Jameson, p. 670. 

2 Journal, Miss. Conv. 1851, pp. 48 and 50. 

3 State V. Dahl (1896), 6 N. D. 81, 86. 

* The only precedent for such action is the Rhode Island convention of 1824. 
But the people repudiated the work of this convention, two to one. Mowry, 
"The Dorr War," pp. 30-33. 

^ See pp. 73-74, infra. 



68 CONSTITUTIONAL CONVENTIONS 

to upset any legislative encroachments upon the process of alter- 
ing the fundamental law;^ and so, until we see whether or not 
the courts interfere with this convention, it would be best not to 
regard it as a precedent. 
But see a 1915 court opinion, which cites Cooley: 

None of the Constitutions of the state of Louisiana contains 
provisions relative to conventions of the people, except the Con- 
stitution of 1812. 

This silence of the organic law on the subject-matter leaves the 
question of calling such convention to the representatives of the 
people in legislative session convened.^ 

Later passages, however, in this same opinion show that the 
court, like Judge Cooley, regarded the legislature as the mere 
initiator of the proceedings, and regarded the electorate as 
the real source of the convention's powers.^ 

Compare Ruling Case Law: 

Call of Constitutional Conventions. — The customary manner 
of calling constitutional conventions in the United States is by 
resolution of the legislature followed by a submission of the question 
to the electorate.* 

And compare a 1916 writer: 

The weight of opinion to-day seems to be that the legislature 
may properly submit to the people the question of holding a con- 
vention to revise the constitution, and if the voters elect to hold 
such a convention the amendments proposed by that convention, 
if ratified by the people, become a part of the fundamental constitu- 
tion, in the absence of any provisions of the constitution prohibiting 
such a method of amendment.^ 

Thus convention-calling is not a regular function of the legis- 
lature, and there is a growing tendency toward the view that 
the legislature has no power to call a convention without first 
obtaining permission from the people. In case that permission 
is obtained, who is it that calls the convention? 

The Supreme Court of Massachusetts said in 1833 : 

1 Ellingham v. Dye (1912), 178 Ind. 336. 

2 State V. Am. Sugar Co. (1915), 137 La. 407, 413. 

3 State V. Am. Sugar Co. (1915), 137 La. 407, 415. 

4 6 R. C. L., § 17, p. 27. 

6 n "Mass. Law Quarterly," 1, 26. 



WHO CALLS THE CONVENTION? 69 

If . . . the people, by the terms of their vote, decide to call a 
convention of delegates ... we are of opinion that such delegates 
would derive their whole authority and commission from such 
vote.^ 

Marcus Morton, one of the judges to join in rendering this 
opinion, amplified it as follows in the Massachusetts convention 
of 1853, in which he sat as a delegate: 

This Act derives its force directly from the people. The legis- 
lature only proposed the Act, and the people of the Commonwealth 
having sanctioned it by their votes, it became law. . . . The 
legislature had the right of proposing the Act calling a Convention, 
and of submitting it to the people; but its whole force is derived 
from acceptance of the Act by the people of the Commonwealth 
themselves.^ 

The New York Supreme Court in 1846 had likewise said: 

A convention is not a government measure, but a movement of 
the people, having for its object a change, either in whole or in 
part, of the existing form of government. 

As the people have not only omitted to confer any power on the 
Legislature to call a Convention, but have also prescribed another 
mode of amending the organic law, we are unable to see that the 
Act of 1845 had any obligatory force at the time of its enactment. 
It could only operate by way of advice or recommendation, and 
not as a law. It amounted to nothing more than a proposition or 
suggestion to the people, to decide whether they would or would 
not have a convention. The question the people have settled in 
the affirmative, and the law derives its obligation from that act, 
and not from the power of the Legislature to pass it. 

The people have not only decided in favor of a Convention, but 
they have determined that it shall be held in accordance with the 
provisions of the Act of 1845. No other proposition was before them, 
and of course their votes could have had reference to nothing else.^ 

See also the following quotations to the same effect: 

A constitutional convention lawfully convened, does not derive 
its powers from the legislature, but from the people.^ 

^ Opinion of Justices (1833), 6 Cush. 573, 575. 

2 Deb. Mass. Conv. 1853, Vol. I, p. 76. 

3 Journal, 69th N. Y. Assembly, p. 919. 

4 Loomis V. Jackson (1873), 6 W. Va. 613, 708. 



70 CONSTITUTIONAL CONVENTIONS 

It is the People, and the People alone, who enacted the call for 
this Convention, by adopting the proposition submitted to them by 
the Legislature in 1900.'^ 

When the call for the Convention was adopted by the People, in 
1900, it became the act of the People, and not of the Legislature, 
which merely framed and proposed it.^ 

The people, when they voted for the holding of the Convention, 
voted for it to be held "in accordance with Act No. 52 of 1896."^ 

The Constitutional Convention , . . derives its authority di- 
rectly from the people.* 

We cannot suppose that the voters meant that it was their will 
that a Convention should be called, without any regard to the time, 
place, or manner, of calling the Convention; for that was all pre- 
scribed in the Act of 1852, under which they voted. . . . The 
voters must have well understood the whole matter when they 
were called upon to signify their will. When, therefore, they voted 
that it was expedient to call a Convention to revise the Constitu- 
tion, that vote must have carried with it a desire that the Conven- 
tion should be called with regard to the time, place, and manner, 
indicated in the Act; and that the vote carried with it everything 
contained in the Act in relation to the manner of voting, the holding 
of meetings, where they should be called, and where the elections 
should be held. They expected and intended all these to conform 
to the Act when they gave that Act their sanction.^ 

When the people, acting under a proper resolution of the Leg- 
islature, vote in favor of calling a convention, they are pre- 
sumed to ratify the terms of the call, which thereby becomes the 
basis of the authority delegated to the convention.^ 

Opposed to this idea of popular origin is Jameson's theory 
that " so far as those Acts were ever to have force as laws, they 
were to derive it from the legislature." ^ 

Hon. Joel Parker maintained the correctness of this position 
in the Massachusetts convention of 1853, as follows: 

1 Braxton, VII "Va. Law Reg.," 100, 103. 

2 Braxton, VII "Va. Law Reg.," 100, 104. 

3 State V. Capdevielle (1901), 104 La. 561, 569. 
* Braxton, VII "Va. Law Reg.," 79, 97. 

6 Speech of Mr. Hyde, Deb. Mass. Conv. 1853, Vol. I, p. 124. 

6 6 R. C. L., § 18, p. 27; State v. Am. Sugar Co. (1915), 137 La. 407, 415. 

' Jameson, p. 398. 



WHO CALLS THE CONVENTION? 71 

The contingency attached to it [convention act of 1852] gave 
it no different character from that of any other act upon the statute 
book. It was passed under the constitution and by the legislature 
as a legislative act. The act provided for putting the question to 
the people and the question was put. The people answered in such 
a way that the rest of the act took effect as an act of the legislature 
and not as an act of the people distinct from the legislature; it 
gave to the act no other character than that which it had possessed 
before as a legislative act.^ 

Rufus Choate has expressed a more moderate point of view 
than Jameson and Parker, in the following words : 

Wliat did the people, in point of fact, do in regard to this point 
of the law of 1852? Was it not exactly this? The legislature caused 
to be presented to them, according to the forms of law, the question 
for substance, whether they deemed it expedient that a Conven- 
tion should be called to consider of revising the Constitution. They 
answered yes; and there they rested. . . . 

Under that repose, under that inaction of the people, after 
that manifestation of their will in that general form, it became a 
matter for mere law in its ordinary course, to devise and enact 
details.^ 

But we should not forget that the act discussed by the 
New York Supreme Court and by them held to have been 
enacted in its entirety by the electorate, was exactly similar 
to the one discussed by Rufus Choate. 

Thus it will be seen that there are two theories with respect 
to who enacts the convention act, under which the people vote 
to hold a convention. The theory with the greatest weight of 
authority behind it is based upon the fact that there would be 
no convention unless the people voted affirmatively, that an 
affirmative vote would result in holding exactly the sort of con- 
vention in every detail provided in the act, and that the people 
are presumed to know the terms of the act under which they 
vote. The conclusion drawn from this is that the convention 
act in its every detail is enacted by the people voting under it. 

The opposing theory, as laid down by Choate, is based upon 
the fact that the only question expressly submitted to the 
people is "Shall there be a convention?"; that if the legislature 
had merely submitted this question without providing the de- 

1 Deb. Mass. Conv. 1853, Vol. I, pp. 154-155. 

2 Deb. Mass. Conv. 1853, Vol. I, pp. 117-119. 



72 CONSTITUTIONAL CONVENTIONS 

tails in advance, it would have been competent for the legis- 
lature to have provided the details ajter an affirmative vote 
by the electorate. From this they conclude that the providing 
of details before the vote of the electorate is equally as much 
the action of the legislature. 

In view of the almost evenly divided opinion on this subject, 
both points of view are fully expressed here 'without discrimi- 
nation, although the author personally strongly inclines to the 
former. 

Several court dicta go to extremes in asserting the popular 
origin of conventions. Thus the Pennsylvania Supreme Court 
has held that the mere voting for delegates, under a convention 
act which the legislature has not submitted to the people, makes 
that statute the act of the people. Their exact language is as 
follows : 

When, therefore, the people elected delegates under the second 
Act, they adopted the terms it contained by acting under it.^ 

Dodd comments adversely on this decision as follows: 

In the Pennsylvania decision cited above: the question of 
holding a convention was submitted to the people and decided 
in the affirmative; the subsequent legislative act calling the con- 
vention (this act was not submitted to the people) sought to im- 
pose certain restrictions upon the convention, and the court 
then said that these restrictions were imposed by the people; 
the facts found by the court did not conform to the real facts of 
the case.^ 

It is clear, of course, that the people in voting for delegates to 
a convention have no way of expressing either approval or dis- 
approval of the terms of the act under which the convention is 
called; here clearly there is no popular adoption of restrictions 
sought to be imposed upon a convention by legislative act.^ 

Yet the Pennsylvania idea has been accepted in other de- 
cisions, as the following quotations show: 

The people elected delegates in reference to tliis call; it was 
not contemplated that they should do any act which was not 
necessary to give effect to the object and purpose of the people.* 

1 Wells V. Bain (1872), 75 Pa. 39, 55. 

2 j)Qd^^ pp 7g_77 

3 Dodd, p. 75. 

4 McCready v. Hunt (1834), 2 Hill Law (S. G.) 1, 222-223. 



WHO CALLS THE CONVENTION? 73 

The convention was called upon the lines which were suggested 
by the Legislature, and in exact conformity with the will of the 
sovereign, as expressed at an election duly held in keeping there- 
with, and the delegates duly chosen thereto were regularly con- 
vened.^ 

When a people act through a law, the act is theirs, and the 
fact that they used the legislature as their instrument to confer 
their powers, makes them the superiors and not the legislature.^ 

Under the Pennsylvania theory, all convention acts, under 
which the electorate chooses the delegates, become thereby the 
product of a popular vote. 

The only alternative theory would appear to be the ingen- 
ious one suggested by Holcombe in the following language: 

Where the call for the convention is not submitted to the people 
for an expression of their consent, such power as the convention 
may possess is apparently delegated to it by the legislature on 
its own authority. It is an accepted principle of the unwritten 
constitution, however, that legislative power may not be dele- 
gated by the body on which the people have conferred it. The 
calling of a convention, therefore, without a vote of the people 
must be regarded as an abdication of power by the regular legisla- 
ture in favor of an extra-constitutional body. Such a body is a 
revolutionary rather than a constitutional convention, and the 
extent of its powers would apparently be determined by itself, 
subject only to the limits which the people in their capacity of 
ultimate sovereign may be able to impose.^ 

So much for cases in which the legislature frames the conven- 
tion act before the popular vote. Even when the act is framed 
after the popular vote, the legislature is not proceeding under 
its general powers, but rather under a special grant of power 
contained in the favorable vote. Thus the people choose the 
legislature as their agents to frame the convention act. 

Dodd says: 

There are dicta to this effect based upon the theory that the 
people in voting for a convention confer upon the legislature 
authority to limit the powers of such conventions.^ 

1 State V. Favre (1899), 51 La. Ann. 434, 436. 

2 Wood's Appeal (1874), 75 Pa. 59, 72. 
' Holcombe, State Government, p. 126. 

* Dodd, p. 87, n. 26. But he disagrees with this, saying: "There would be 
a strong presumption that in voting for a convention they meant to vote for 
one with full power." Dodd, p. 76. Compare pp. 103-104, infra. 



74 CONSTITUTIONAL CONVENTIONS 

And the Supreme Court of Indiana has said: 

The General Assembly . . . merely asked the people to express 
their will in relation to calling a convention . . . and when it was 
expressed it was a warrant and a command which the legislative 
authority carried out as given. ^ 

Of course, in case the entire act is expressly submitted to the 
people for ratification (as is required by the constitutions of 
Oregon and Oklahoma, and as is regularly practiced in many 
other States),^ there would seem to be no doubt that it derives 
its force and validity from the popular approval. 

Dodd, however, points out that it is necessary in such a case 
for the people to pass on two questions in one, namely, whether 
they want a convention, and whether they want one under the 
terms proposed by the legislature; and he infers from this that 
there is some doubt as to whether even such a statute is 
the act of the people.^ This seems like far-fetched reasoning, 
however. 

The only situation in which one could be absolutely certain 
that the convention act was the product of the legislature alone, 
would be if the legislature called the convention and itself 
chose the delegates.^ Yet there is argumentative authority 
even against this, for in the case of the Pennsylvania conven- 
tion of 1872, the convention act was not submitted to the 
people, and the legislature chose part of the delegates: yet the 
entire proceeding was held by the courts to be popular in its 
nature.^ 

But, as we saw early in this chapter, the whole question of 
whether the legislature or the people enacts the convention 
act may be cleared up by a consideration of the relative powers 
of the legislature and the people. We have already seen that 
the people have a supraconstitutional right to take steps to 
change their government, and that this right is conceded by 
most constitutions.^ Where does the legislature derive any right 
to take steps to change the form of government except in cases 

1 Ellingham v. Dye (1912), 178 Ind. 336, 377-378. 

2 Dodd, p. 75. 

3 Dodd, p. 75. 

* As in the case of the Georgia convention of 1788. Jameson, p. 135. 
6 Wells V. Bain (1872), 75 Pa. 39, 52. 
s Supra, pp. 13-14. 



WHO CALLS THE CONVENTION? 75 

in which that right is expressly conferred upon the legislature 
by either the constitution or the people? Legislatures have no 
inherent rights. Their powers are derived from the constitu- 
tion and hence in States whose constitutions do not provide for 
the holding of a constitutional convention, it would seem that 
the legislature cannot call a convention/ and hence that a con- 
vention in order to be valid must be the act of the people. 

Yet, although the legislature cannot lawfully call a conven- 
tion unless it possesses authority derived either from the con- 
stitution or directly from the people, on the other hand the 
people cannot call a constitutional convention without some 
means being first provided for the expression of popular opin- 
ion.2 It is also necessary, either before or after the people have 
expressed their wish for a convention, for some law to provide 
for the election of the delegates. 

At one time in the early history of the country the view was 
entertained that the people could legally assemble in convention 
and revise their constitution without the sanction of the legisla- 
ture, but this doctrine is no longer recognized.^ 

The Pennsylvania Supreme Court has said in this connec- 
tion: 

When a law becomes the instrumental process of amendment, 
it is not because the legislature possesses any inherent power to 
change the existing constitution through a convention, but because 
it is the only means through which an authorized consent of the 
whole people, the entire state, can be lawfully obtained in a state 
of peace. ... If the legislature, possessing these powers of 
government, be unwilling to pass a law to take the sense of the 
people, . . . the remedy is still in their own hands; they can 
elect new representatives that will. . . . The people required the 
law, as the act of the existing government, to which they had ap- 
pealed under the Bill of Rights, to furnish them legal process to 
raise a convention for revision of their fundamental compact, 
and without which legal process the act of no one man could bind 
another.'* 

judge Jameson comments on this decision in the following 
words, the conciseness of which leaves nothing further to be 
said on the subject. 

1 Supra, pp. 62-65. ^ Supra, pp. 16-19. 

3 6 R. C. L., § 17, p. 27. " Wells v. Bain (1872), 75 Pa. 39, 47-48. 



76 CONSTITUTIONAL CONVENTIONS 

Admitting the competency of the people to call conventions, 
it would be impracticable, except through legislative interposition.* 

A supraconstitutional right requiring the assistance of con- 
stitutional authority is certainly an anomaly, and yet that is 
what exists in the case of conventions. It has already been 
pointed out in Chapter II that the reason for the failure of Dorr's 
Rebellion in Rhode Island was this one technical point — he 
did not have the assistance of duly constituted authority, and 
hence there was no means of ascertaining whether he repre- 
sented the people or merely a faction of the people.^ 

And yet as Dodd points out,^ the legislature may stand in the 
way of the fulfillment of the popular will, just as the legislatures 
have in some cases nullified constitutional provisions by refus- 
ing to pass an enabling act thereon. The remedy of electing new 
representatives, as suggested by the Pennsylvania Supreme 
Court,^ is not sufiicient. 

In one case at least, difficulty has been encountered in ob- 
taining the passage of a law for the assembling of a convention 
authorized by the people. In 1886 a popular vote taken in New 
York (under the constitution of 1846, which provided for such 
a vote once every twenty years) was overwhelmingly in favor 
of the calling of a convention. But, owing to a disagreement 
between the legislature and the Governor, who belonged to dif- 
ferent political parties, it was impossible for some time to ob- 
tain the passage of a law authorizing the convention, and the 
convention did not actually meet until eight years after the 
popular vote. In the constitution adopted by this convention, 
it was sought to avoid such a difficulty for the future by mak- 
ing the constitutional provisions regarding a convention self- 
executing.^ 

Not merely is the popular vote on the question of holding a 
convention to be taken at twenty-year intervals, but the last 
vestige of intervention by the legislature in the matter is swept 
finally away. In case the people vote in the affirmative, the con- 
stitution itself provides, minutely, for the apportionment, election, 
organization, and procedure of the convention. Thus there is 
now imbedded in the constitution of New York a complete system 

^ Jameson, p. 539. ^ See p'p. 21-22, supra. 

3 Dodd, pp. 55-56, and n. 53. ^ Wells v. Bain (1872), 75 Pa. 39, 47. 

B Dodd, p. 55. 



WHO CALLS THE CONVENTION? 77 

for total revision of the constitution of that state beyond the 
control of the legislature. The people initiate, the convention 
drafts, the people enact.^ 

The popular will was similarly thwarted in New Hampshire 
in 1860 and 1864.2 

The Michigan constitution of 1908 accomplishes the same 
result by provisions similar to those of the New York con- 
stitution of 1894. The Missouri constitution of 1875 also makes 
the assembling of a convention independent of legislative 
action, after the people have voted that a convention shall be 
held; the constitution itself containing full provisions regarding 
the apportionment and election of delegates. Writs for an 
election are required to be issued by the Governor after a 
favorable vote of the people.^ 

But, in all of the States except those mentioned above, the 
assembling of conventions is to a large extent dependent upon 
legislative action, even after the people have voted that a 
convention shall be held.^ 

From all the foregoing, we can make the following deductions 
as to who it is that calls a convention; in other words, who it 
is that enacts the convention act. 

If the act originates by an initiative petition, it is clear that 
the people pass the act, although there may be some dispute 
as to whether they proceed under the authority of the con- 
stitution, or under a supraconstitutional authority, with the 
mere assistance of the constitution. 

In case the constitution provides for the holding of a con- 
vention without either legislative or popular action, such a 
convention will probably derive its whole force and validity 
from the constitution. If the constitution provides for the 
holding of a convention after action by the legislature alone, 
it is probable that such a convention derives its validity from 
the constitution and is called into being by the legislature. 
But in the last two cases it may well be that the people, by 
acting under the convention act or constitutional provision, 
ratify it and make it theirs. 

1 Judson, Essentials of a Written Const. (U. of Chi. 1903), p. 21. 

2 Dodd, p. 55, n. 53. 

3 Dodd, pp. 55-56. 

* Compare the discussion of this same point, pp. 116-117, infra. 



78 CONSTITUTIONAL CONVENTIONS 

If the constitution authorizes a convention after popular vote, 
it may be that the convention is the creature of the people with 
the permission of the constitution; but owing to the fact that 
the constitution could not withhold this permission, and in the 
light of the four cases in which the constitutional methods were 
disregarded, it is possible that even such a convention derives 
its whole authority from the popular vote, and that the con- 
stitution merely provides the means, the same as a statute would 
have done. 

When the legislature passes a convention act without sub- 
mitting it to the people, if there is a previous vote of the people 
authorizing a convention in general terms, it may be that this 
vote delegates to the legislature the power to enact details. 

When the legislature submits the question to the people, 
either with or without the sanction of the constitution, the 
weight of authority is that the convention derives its whole 
sanction from the popular vote, and that such details as are 
enacted by the legislature prior to the popular vote derive their 
binding force from the people and not from the legislature; 
a fortiori, if the legislature submits the entire act for popular 
ratification. 

Yet we have seen that there is need of a means through 
which the people may express their will. This may be pro- 
vided either by a statute or by a constitutional provision; 
preferably the latter, as that frees the convention from the 
danger of legislative usurpation. 



Chapter VI 
LEGISLATURES AS CONVENTIONS 

In the preceding chapter we discussed the power of the 
legislature to call a constitutional convention. There we found 
that, although the present tendency is to regard a reference of 
the question to the people as absolutely essential, yet, in the 
early days, this was not always done.^ In fact, on occasions, 
the legislature has even elected a part or all of the delegates 
itself.2 

The original conventions of the period of the Revolutionary 
War combined the functions of conventions and legislatures,^ 
but as the convention system developed, the two bodies gradu- 
ally became more and more differentiated. Thus we see the 
western towns of New Hampshire protesting in 1777 against 
the framing of a permanent plan of government by the legis- 
lature,^ and we see the people of Massachusetts in 1778 over- 
whelmingly voting down a constitution drafted by a legislature 
which had resolved itself into a constitutional convention.^ 

A constitution drafted by a legislative commission in Michigan 
in 1873, and constitutions drafted by the Rhode Island legis- 
lature and submitted in 1898 and 1899, were rejected by the 
people.^ 

The only example of successful drafting of a constitution 
by a legislature occurred in the Territory of Nebraska in 1866. 
But it is interesting to note that the Supreme Court of that 
State held the entire proceeding to be irregular, being cured, 
however, by the admission of the State into the Union.'^ 

Legislatures generally have not presumed that they had any 
power to resolve themselves into constitutional conventions, 

^ See p. 66, supra. ^ See p. 74, supra. 

^ See p. 4, supra. * See p. 6, supra. 

5 See pp. 5, 6-7, supra. e Dodd, p. 39, n. 20. 

" Brittle v. People (1873), 2 Neb. 198, 216. 



80 CONSTITUTIONAL CONVENTIONS 

until we come to the case of Indiana in 1911. The general 
assembly of that year drafted and incorporated in a bill what 
was therein termed a proposed new constitution, which was 
really a copy of the existing constitution with twenty-three 
changes in its provisions, and submitted it to a vote of the 
people at the general election to be held in November, 1912.^ 

The Indiana legislature doubtless proceeded upon the theory 
that, if a legislature can call a convention and choose the dele- 
gates to it, the legislature can call itself a convention and 
choose its own members as the delegates. Doubtless the 
legislature thought that, even though this method of procedure 
was contrary to both the customary convention method and the 
constitutional method of submission by two successive legis- 
latures; yet, nevertheless, a popular ratification of the proposed 
new constitution would cure all irregularities in its inception. 

Maybe the legislature was right in this latter assumption,^ 
but that can never be ascertained, for the Supreme Court of 
the State nipped the proceeding in the bud by enjoining the 
submission of this new constitution to the people. The Supreme 
Court of California had also, in an earlier decision, given some 
intimation as to what the law would be in a case like this. 

These two decisions have developed the following principles 
of law relative to the powerlessness of the legislature to resolve 
itself into a constitutional convention. 

First: A constitution is a legislative act of the people. On 
this point the Indiana Court says: 

A state constitution has been aptly termed a legislative act by 
the people themselves in their sovereign capacity, and, therefore, 
the paramount law.^ 

Secondly: There is a marked distinction between the legis- 
lative powers of the people and the legislative powers of the 
legislature. On this see the following: 

To erect the State or to institute the form of its government 
is a function inherent in the sovereign people. To carry out its 
purpose of protecting and enforcing the rights and liberties of which 
the ordained constitution is a guaranty, by enacting rules of civil 

1 Ind. Laws, 1911, c. 118. 

2 See p. 216, infra. 

* Ellingham v. Dye (1912), 178 Ind. 336, 345. 



LEGISLATURES AS CONVENTIONS 81 

conduct relating to the details and particulars of the government 
instituted, is the function of the legislature under the general grant 
of authority. It needed no reservation in the organic law to pre- 
serve to the people their inherent power to change their government 
against such a general grant of legislative authority.^ 

A constitution is legislation direct from the people, acting in 
their sovereign capacity, while a statute is legislation from their 
representatives, subject to hmitations prescribed by the superior 
authority.^ 

The Parliament of Great Britain, is possessed of all legislative 
powers whatsoever. It can enact ordinary statutes, and it can 
pass laws strictly fundamental. Not so with our legislatures.^ 

The two houses and the governor constitute the entirety of the 
body which considers and finally determines all matters of legis- 
lation. But it is the two houses and the great mass of the electors 
of the commonwealth combined which constitute the body which 
considers and determines the questions of constitutional amend- 
ment. With all matters of legislation the people in their capacity 
of electors have nothing to do. But with constitutional amend- 
ments they have everything to do, for the ultimate fate of all 
proposed amendments depends absolutely upon their approval. 
If they approve, the proposed amendment at once becomes a part 
of the constitution; if they disapprove, it fails utterly and never 
comes into existence. The fundamental distinction which thus 
becomes most manifest, between the mere legislative machinery of 
the government, and that machinery which alone possesses the 
power to ordain amendments to the constitution of the common- 
wealth is most radical and extreme.^ 

We have seen that, in the United States, the constitutional Con- 
vention belongs to the genus legislatiu"e, — by which it is meant 
that its proper function is to elaborate, to a certain extent, to be 
determined by the tenor of its conunission, the fundamental law, 
mu'ch as the legislature enacts the ordinary municipal law. Of 
these two species of law, the distinction between which has been 
already explained, it is the important thing to note, that the 
one denominated fundamental is, generally speaking, the work 
only of a Convention, a special and extraordinary assembly, con- 
vening at no regularly recurring periods, but whenever the harvest 

1 Ellingham v. Dye (1912), 17SInd. 336, 344. 

2 Ellingham v. Dye (1912), 178 Ind. 336, 345. 

3 Ellingham v. Dye (1912), 178 Ind. 336, 347. 

* Commonwealth v. Griest (1900), 196 Pa. 396, 410-411, 



82 CONSTITUTIONAL CONVENTIONS 

of constitutional reforms has become ripe; while, on the other 
hand, the ordinary statute law, whose provisions are tentatory and 
transient, is, regularly at least, the work of a legislature, — a body 
meeting periodically at short intervals of time.^ 

Thirdly: The legislature, in taking any steps toward the 
framing of a constitution, does not act in its legislative capacity. 
This we have already seen in the last chapter, where were 
reviewed many authorities to the effect that the calling of a 
convention, being a step in the framing of fundamental law, is 
not strictly within general legislative powers. 

Many decisions bearing more or less on this point, but 
relating more particularly to the extralegislative nature of the 
proposal of constitutional amendments, are collected in the 
Indiana decision.^ 

Furthermore, the Indiana decision says that in the ordinary 
legislative method of constitutional amendment, the legislature 
is quoad hoc empowered to act as a convention. 

By express constitutional provision, they act in conventional 
capacity, in the way of recommending specific amendments to 
their constitution.^ 

The Indiana Court quotes with approval the following from 
the Supreme Court of Arkansas: 

The General Assembly, in amending the constitution, does not 
act in the exercise of its ordinary legislative authority, of its gen- 
eral powers; but it possesses and acts in the character and capac- 
ity of a convention, and is quoad hoc, a convention expressing 
the supreme will of the sovereign people.^ 

and Jameson's following comment thereon: 

It expresses with admirable brevity, force, and clearness, the 
true doctrine in regard to the power of our General Assemblies 
under similar clauses of our Constitutions.^ 

This, however, cannot be meant literally, for it is easily ob- 
servable that the courts will enforce strict compliance with the 

1 Jameson, p. 422. 

2 Ellingham v. Dye (1912), 178 Ind. 336, 347-352. Cf. State v. Hall (1916), 
159 N. W. 281, 282. 

3 Ellingham v. Dye (1912), 178 Ind. 336, 347. 

* State V. Cox (1848), 3 English (Ark.) 436, 444; quoted 178 Ind. 336, 348. 
5 Jameson, p. 586; quoted 178 Ind. 336, 348. Cf. Collier v. Frierson (1854), 
24 Ala. 100, 102. 



LEGISLATUKES AS CONVENTIONS 83 

constitutional provisions for the legislative method of amend- 
ment, whereas they are much more cautious in interfering with 
the popular method of amendment through the medium of a 
convention. 

The language used, however, is all right as illustrating the 
principle that the legislature, in framing a constitutional change, 
is not acting as a legislature, but is rather acting under an extra- 
legislative power specifically delegated to it by the people for 
this purpose. 

Fourthly: The legislature gets by express grant, its power to 
frame constitutional changes. See the following quotations : 

In submitting propositions for the amendment of the consti- 
tution, the legislature is not in the exercise of its legislative power, 
or any sovereignty of the people that has been intrusted to it, but 
is merely acting under a limited power conferred upon it by the 
people. 

The extent of this power is limited to the object for which it is 
given, and is measured by the terms in which it has been conferred, 
and cannot be extended by the legislature to any other object, or 
enlarged beyond these terms.^ 

This right to propose amendments to the constitution is not the 
exercise of legislative power by the General Assembly in its ordi- 
nary sense, but such power is vested in the legislature only by the 
grant found in the constitution, and such power must be exercised 
within the terms of the grant.^ 

Where authority is specifically granted to the legislature by the 
constitution to prepare and submit amendments, that estabKshes 
its competency, and, to the extent of the specific authorization 
and within its limitation, it is always to be considered as chosen 
for the purpose.^ 

Power over the Constitution and its change has ever been con- 
sidered to remain with the people alone, except as they had, in 
their Constitution, specially delegated powers and duties to the 
legislative body relative thereto for the aid of the people only.^ 

Fifthly: It follows that the legislature cannot act as a con- 
vention without a similar express grant, either in the constitu- 

1 Livermore v. Waite (1894), 102 Cal. 113, 118. 

2 Chicago v. Reeves (1906), 220 111. 274, 288. 

3 Ellingham v. Bye (1912), 178 Ind. 336, 353. 

4 Ellingham v. Dye (1912), 178 Ind. 336, 357. 



84 CONSTITUTIONAL CONVENTIONS 

tion, or given by the people under their extraconstitutional 
powers. 

The legislature is not authorized to assume the function of a 
constitutional convention, and propose for adoption by the 
people a revision of the entire constitution under the form of an 
amendment.^ 

This is quoted with approval by the Indiana Court.^ 
Jameson has said: 

It is thoroughly settled that, under our Constitutions, State 
and Federal, a legislature cannot exercise the functions of a con- 
vention — cannot, in other words, take upon itself the duty of fram- 
ing, amending, or suspending the operation of the fundamental 
law.^ 

This also is cited with the approval by the Indiana Court.^ 
Sixthly: The general grant of legislative powers is not 
enough to empower the legislature either to act as, or to call, a 
convention; for, as we have seen, the framing of fundamental 
law is not a strictly legislative duty.^ Thus the Indiana Court 
says: 

But this general grant of authority to exercise the legislative 
element of sovereign power has never been considered to include 
authority over fundamental legislation. It has always been de- 
clared to vest in the legislative department. authority to make, alter 
and repeal laws, as rules of civil conduct pursuant to/the Constitu- 
tion made and ordained by the people themselves and to carry out 
the details of the government so instituted.® 

In assuming to legislate in relation to structural changes in the 
government, the legislature is not acting within the power it takes 
under the general grant of authority to enact, alter and repeal laws 
under and pursuant to the Constitution. For, to deal with or- 
ganic law — to determine what it shall be, when it needs change, the 
character of the change and to declare and ordain it — is peculiarly 

1 Livermore v. Waite (1894), 102 Cal. 113, 118. 

2 Ellingham v. Dye (1912), 178 Ind. 336, 349. 

4 Ellingham v. Dye (1912), 178 Ind. 336, 352. 

^ See full discussion of this point, pp. 80-83, infra. 

6 Ellingham v. Dye (1912), 178 Ind. 336, 343. 



LEGISLATURES AS CONVENTIONS 85 

a power belonging to the people, and this fact they have declared, 
as we have seen, in the first section of the bill of rights.^ 

Had it been thought then that the general grant of legislative 
authority placed in the hands of the General Assembly the power to 
accomplish the same work which that body was asldng the people 
to authorize a constitutional convention to do, it is not to be sup- 
posed that the fruitless efforts to secure a convention would have 
continued. But, on the contrary, it is highly probable that the 
General Assembly would itself have done the work of revision or 
reframing amendments, and thus have avoided the delay and the 
greater expense, entailed by a convention. No one then claimed 
that the framing of fundamental law might be done by legislative 
act under the general grant of legislative authority.^ 

Seventhly: Nevertheless, by long custom the legislatures have 
acquired the power to assist the people to hold a constitutional 
convention. Thus Jameson has said: 

It is clear that no means are legitimate for the purpose indicated 
but Conventions, unless employed under an express warrant 
of the Constitution.^ 

The author's conclusion is, that the change or amendment of the 
written constitutions which prevail under the American system is 
confined to two modes: 1, by the agency of conventions called by 
the General Assembly in obedience to a vote of the people, and usu- 
ally pursued when a general revision is desired; and 2, through 
the agency of the specific power granted to the General Assembly 
by constitutional provision to frame and submit proposed amend- 
ments, which is considered preferable, when no extensive change in 
the organic law is proposed.^ 

The extraconstitutional legality of such conventions has al- 
ready been discussed in Chapter IV. 

Thus the Indiana decision appears to have established the 
law that the legislature has no authority to resolve itself into a 
constitutional convention. 

But this law is likely soon to be upset by precedent in the 
neighboring State of North Dakota. There, the present con- 
stitution requires amendments to be twice passed by the legisla- 

1 Ellingham v. Dye (1912), 178 Ind. 336, 357. 

2 Ellingham v. Bye (1912), 178 Ind. 336, 360-361. 

« Ellingham v. Dye (1912), 178 Ind. 336, 355. 



86 CONSTITUTIONAL CONVENTIONS 

ture before submission to the people;^ yet at the last session 
the majority party {i. e. the Farmers' Nonpartisan League) 
introduced a bill for the immediate submission of a complete 
new constitution, embodying the reforms pledged by the 
Farmers' platform,^ This bill passed the House, but was blocked 
by the hold-over members of the Senate. If, as now seems possi- 
ble, the Farmers gain control of both Houses at the next elec- 
tion, the bill will be adopted, and will undoubtedly be sustained 
by the Supreme Court, which is now dominated by the Farmers. 

Thus, until we learn the result of the North Dakota experi- 
ment, the Indiana decision must remain open, especially as it 
was made by a court of the opposite political party than the 
party which at the time controlled the legislature.^ 

In this connection it is interesting to compare the following 
from a recent opinion by the Attorney-General of North 
Dakota: 

An examination of our State and Federal Constitutions shows 
that no procedure for revision or for the adoption of a new State 
Constitution, as an organic whole, is provided for. 

The Constitution of North Dakota, Section 2, however, does 
contain the following declaration: 

"All political power is inherent in the people. Government is 
instituted for the protection, security and benefit of the people; 
and they have the right to alter or reform the same whenever 
the public good may require." 

Moreover, in our system of government, constitutions derive 
their power from the people, not the people from constitutions. 
The rights and powers of the people existed before a constitution 
was formed. In other words, before the establishment of a con- 
stitution, the people possessed sovereign power. 

That power they still possess, except in so far as they may have 
delegated it to State or National Governments, or have volun- 
tarily restricted themselves in its exercise under their constitu- 
tions. 

Many of our states have adopted express methods of revising 
their constitutions through constitutional conventions. However, 

1 N. Dak. Const., Art. XV, § 202. 

2 1917, N. D. House Bill 44. 

3 VI "Am. Polit. Sci. Rev.," 43, 44. 



LEGISLATURES AS CONVENTIONS 87 

for generations, many states had no express method of revision, and 
at least a dozen states, North Dakota being among them, have 
none today. 

It is urged that, since our Constitution provides a method of 
amendment, by exclusion the Legislature is prohibited from 
initiating a revision itself by drafting a new Constitution. This 
argument is untenable when dealing with sovereignty of the people 
seeking expression through revision. It is an instance where the 
ordinary doctrine of exclusion applicable to contracts is not binding. 
Moreover, if such an argument were applicable to legislative revi- 
sion it would be equally applicable to revision by convention, 
and on that subject our own Supreme Court, in 68 N. W. 421 
(N. D.), has said: 

"The decided weight of authority and the more numerous 
precedents are arrayed on the side of the doctrine which supports 
the existence of this inherent legislative power to call a constitu- 
tional convention, notwithstanding the fact that the instrument 
itself points out how it may be amended." 

The sovereign power of revision having reached the threshold 
of the legislature without express written authority and solely by 
its irresistible right to expression, what mysterious power can 
then, without vestige of authority, assume the right to bridle it 
and lead it tamely down the narrow, though highly respectable, 
avenue of revision by convention? 

In my opinion any method followed by the legislature in placing 
before the people a new constitution for adoption or rejection in their 
sovereign capacity is legal} 

He differentiates the Indiana case as follows : 

In connection with this I will also say that the case of Ellingham 
vs. Dye, 99 N, E. 1, apparently opposed to the legality of legislative 
revision, is clearly not applicable to the situation in this State, owing 
to an unusual and, perhaps, entirely unique occurrence in the history 
of Indiana when the provisions for revision contained in the 
Indiana constitution up to 1851 were then stricken out with the 
express intention that never again would the Indiana constitution 
be revised, but only changed by amendment? 

1 No. Dak. House Journal for Jan. 26, 1917. 

2 No. Dak. House Journal for Jan. 26, 1917. 



88 CONSTITUTIONAL CONVENTIONS 

Whatever may be said for the correctness of his differentiation, 
the fact remains that in his main argmnent he overlooks two 
points: (1) that the legislature having probably no power to 
call a convention without popular permission/ a fortiori has 
no power to call itself a convention without such permission; 
and (2) that his citations, not given above, on the power of the 
legislature to submit a whole constitution, relate to submission 
in the regular constitutional manner, and not irregularly as 
attempted in Indiana and North Dakota.^ 

Nevertheless, as already suggested, it would be well to await 
the success of the North Dakota experiment before definitely 
passing upon the subject matter of this chapter. 

1 See pp. 62-65, suvra. « Dodd, pp. 260-261. 



Chapter VII 

EXECUTIVE INTERVENTION 

The question of the power of one of these departments to 
interfere with a convention largely depends upon a determina- 
tion of the exact status of the convention. Regardless of whether 
or not the convention is revolutionary, there can be no doubt 
that, either with or without constitutional sanction, the conven- 
tion has become established as a regular organ of American 
government. The separation of the departments of government 
is a fundamental principle of American constitutional law. 
Nearly all of our constitutions lay down the rule that: 

The legislative department shall never exercise the executive 
and judicial powers, or either of them; the executive shall never 
exercise the legislative and judicial powers, or either of them; 
the judicial shall never exercise the legislative and executive pow- 
ers, or either of them.^ 

And not only may no department exercise the powers of any 
other, but each department is also forbidden to interfere with 
the functions of any other. 

This is important in connection with Dodd's theory as to the 
relation which the convention bears to the three regular de- 
partments. He says: 

f The better view would seem to be that the convention is a 
regular organ of the state (although as a rule called only at long 
intervals) — neither sovereign nor subordinate to the legislature.^ 

The following quotations from various authorities sustain 
this view: 

_ But a rather better view, less extreme than either of the pre- 
ceding ones, regards the convention as a regular organ of the 
existing government coordinate with the other branches. In its 

1 Mass. Decl. of Rts., Art. XXX. « Dodd, p. 80. 



90 CONSTITUTIONAL CONVENTIONS 

sphere of constitution making it should be supreme, subject only 
to limitation by the people.^ 

The convention is an independent and sovereign body whose 
sole power and duty are to prepare and submit to the people a 
revision of the constitution, or a new constitution to take the 
place of an old one.^ 

Nothing could conduce more to simplicity of view, than to con- 
sider this institution as a branch of that system by which the state, 
considered as a political society, works out its will in relation both 
to itself and to the citizens of which it is composed. And this 
... I am satisfied is the correct view to take of the question.^ 

A Constitutional Convention is a legislative body of the high- 
est order. It proceeds by legislative methods. Its acts are legis- 
lative acts. Its function is not to execute or interpret laws, but 
to make them. That the consent of the general body of electors 
may be necessary to give effect to the ordinances of the Conven- 
tion, no more changes their legislative character, than the re- 
quirement of the Governor's consent changes the nature of the 
action of the Senate and Assembly.* 

It is the highest legislative body known to freemen in a repre- 
sentative government.^ 

It is of the greatest importance that a body chosen by the people 
of this state to revise the organic law of the state, should be as 
free from interference from the several departments of government, 
as the legislative, executive and judiciary are, from interference by 
each other.® 

The only authority contra appears to be the Supreme Court 
of Pennsylvania, which has said: 

The convention is not a co-ordinate branch of the government. 
It exercises no governmental power, but is a body raised by law 
in aid of the popular desire to discuss and propose amendments.' 

1 XXIX "Harv. Law Rev.," 520. 

2 CaHon V. Secy, of State (1908), 151 Mich. 337, 340. 

^ Jameson, p. 315. Compare the quotation from Jameson, pp. 319-320, on 
p. 187, infra. And compare Jameson, pp. 23-24. 

* Report of Judiciary Committee, headed by Elihu Root, and unanimously 
adopted by the Convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 245. 

6 Sproule v. Fredericks (1898), 69 Miss. 898, 904. 

8 Report of Judiciary Committee, headed by Elihu Root, and imanimously 
adopted by the Convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 250. 
Quoted with approval in Deb. Mich. Conv. 1907-1908, p. 1275. 

7 Wells v. Bain (1872), 75 Pa. 39, 57. 



EXECUTIVE INTERVENTION 91 

Thus the weight of authority is to the effect that the conven- 
tion, when in session, is a fourth branch of the government, with 
the same immunity from interference as that possessed by the 
other three. The executive and judiciary have no more right to 
interfere with the fourth branch than they do with the other 
legislative branch, namely, the legislature. The legislature has 
no right to interfere with a legislative body of higher standing. 

Let us now consider intervention by the executive depart- 
ment, either of the state or nation. The converse question, 
i. e. the power of the convention to interfere in the affairs of the 
executive department, will be considered in a later chapter.^ 

First, with respect to the State executive. By this is meant 
the chief executive, i. e. the Governor, or the Governor acting 
with the consent and assistance of some advisory body. 

The executive branch, like the other two branches, derives 
its delegated authority entirely from the constitution, and has 
no powers except those expressly or impliedly granted therein, 
and no powers even when granted, if they are such as to be be- 
yond the power of the constitution to grant. This must be 
borne in mind throughout this chapter. 

The first manner in which a governor might interfere with a 
convention would be to prevent the holding of a convention by 
vetoing the convention act. 

Under the initiative and referendum, in all the States in 
which it is in force,^ a convention initiated by the people would 
not be subject to executive veto, as the constitutions of those 
States do not authorize such a veto. 

With respect to conventions expressly called by the con- 
stitution, or conventions the call for which is submitted to the 
people by the constitution without legislative action, it is like- 
wise clear that there is no way in which the Governor could 
veto the project. 

With respect to constitutions which authorize the passage of 
conventions acts, the results differ in different States. In 
Alabama and Delaware the convention act need not be sub- 
mitted to the Governor for his approval, and is expressly de- 

^ Chapter XI, infra. 

2 Namely Arizona, Arkansas, California, Colorado, Michigan, Missouri, 
Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, Idaho, Maine, 
Montana, South Dakota, Utah, and Washington. "Columbia Digest," p. 771. 



92 CONSTITUTIONAL CONVENTIONS 

clared to be valid without his approval.^ No other constitutions 
make express provision in this connection, but it would appear 
that an act of the legislature calling for a popular vote would 
not be subject to veto, no veto power being mentioned in this 
connection; although a legislative act providing for the details 
of holding the convention, if regarded as ordinary legislation, 
would be subject to the regular veto power of the Governor.^ 

The usual practice in such States has been to submit to the 
people the question of holding a convention; without asking 
for the Governor's approval. This would naturally follow from 
the fact that a convention act is not a bit of ordinary legislation. 

It does not require the approval of the governor to make it 
valid.^ 

Yet In Nebraska, which is a State of this sort, and where 
therefore the submission of this question to a popular vote 
would seem to be clearly within the power of the legislature, 
independent of the Governor, a joint resolution in^ 1903 upon 
this subject was vetoed by the Governor, and no further action 
was taken.^ 

In New York, the Governor by quarreling with the legislature, 
postponed for eight years the holding of the convention au- 
thorized by a popular vote in 1886.^ 

But although the executive veto of an act to take the sense of 
the people has been successfully employed on these occasions, 
yet executive approval is usually dispensed with. What author- 
ity there is sustains this custom, which thus has the support 
of the weight of both judicial and actual precedent. 

In the absence of constitutional provisions authorizing the 
holding of a convention, we have seen that the people require 
the assistance of the legislature in order to express their will 
on the subject, yet the act rendering this assistance is not 
strictly legislative in its nature. Thus, although it is customary 
to refer such an act to the Governor for his approval, this has 
been held to be unnecessary: 

1 Ala. Const., XVIII, 286; Del. Const., XVI, 2, 4. 

2 Dodd, p. 56, n. 55. 

3 Carton v. Secy, of State (1908), 151 Mich. 337, 341. 
* Dodd, p. 57, n. 55. 

5 Dodd, p. 55. 



EXECUTIVE INTERVENTION 93 

That it did not take the form of an ordinary law is too clear for 
controversy. The joint resolution has no title. Its enacting clause 
is not couched in the language prescribed by the constitution to be 
employed in the enactment of ordinary laws ; nor was it ever submit- 
ted to the governor for approval. Whenever it is necessary that 
the expression of sovereign will should take the form of ordinary 
legislation, these requirements must be strictly observed. But, 
in declaring its purpose that a specific proposition should be 
submitted to the people for their approval or disapproval, the 
legislature is not discharging the ordinary function of enacting 
laws.^ 

If the people, by voting to have a convention, thereby im- 
pliedly authorize the legislature to enact details,^ such authori- 
zation may well be on the same plane with an authorization 
contained in the constitution and hence justify the submission 
of such acts to the Governor. This is the general practice. 

Thus it is seen that the Governor can prevent the holding of 
a convention by vetoing the legislative act providing for the 
details of a convention. The Governor, however, has no power 
to prevent the holding of a convention called under the popular 
initiative, or provided for by the constitution in a manner which 
does not allow legislative interference. 

All of the foregoing sorts of interference by the Governor 
are seen to be really a part of his legislative power, rather than 
of his executive power. 

Whenever a legislature would have power to interfere by 
inaction with the holding of a constitutional convention,^ the 
Governor probably possesses a coextensive power to interfere 
by vetoing legislative action. 

The Governor, in his executive capacity, however, can assume 
a very important role, in case the legitimacy of the convention 
or of any of its actions comes into dispute. In the case of two 
conflicting sets of claimants to office in any department, one 
set claiming under the old constitution and the other set claim- 
ing under the new, the Governor and the other executive officers 
who have control of the State finances may be in a position, 
by the giving or withholding of salaries, to determine effectually 
which set of officers is legal. 

1 State V. Dahl (1896), 6 N. D. 81, 82. 

2 See p. 72, supra. ^ See pp. 116-117, infra. 



94 CONSTITUTIONAL CONVENTIONS 

So, too, in jurisdictions where the courts consider the legality 
of the acts of a popular convention to be a political rather than 
a judicial question,^ the recognition or nonrecognition of the 
new constitution by the Governor may be the deciding point 
in determining its validity or invalidity. 

Braxton says that any act of the existing government in 
recognition of an irregular constitutional change should be 
regarded as acquiescence and ratification on the part of the 
people.^ 

Thus the Military Governor of Tennessee, acting on the 
authority of the President, ratified the constitution which had 
been submitted by the purely spontaneous convention of 1865.^ 

The Federal executive can very often determine whether a 
convention is valid or merely factional. The clauses of the 
Federal constitution guaranteeing to each State a republican 
form of government and permitting the President to maintain 
order in any State if requested by the State legislature or by 
the State executive if the legislature is not in session,^ give the 
President the power to interfere with a constitutional con- 
vention. 

The power of deciding whether the exigency has arisen upon 
which the government of the United States is bound to interfere, is 
given to the President. He is to act upon the application of the 
legislature or of the executive, and consequently he must determine 
what body of men constitute the legislature, and who is the gover- 
nor, before he can act. The fact that both parties claim the right 
to the government cannot alter the case, for both cannot be entitled 
to it. If there is an armed conflict, like the one of which we are 
speaking, it is a case of domestic violence, and one of the parties 
must be in insurrection against the lawful government. And the 
President must, of necessity, decide which is the government and 
which party is unlawfully arrayed against it, before he can per- 
form the duty imposed upon him by the act of Congress.^ 

On two occasions the President of the United States has 
interfered to decide whether the government of a State was 
valid or factional. In the case of Rhode Island, as pointed 

^ See pp. 162-163, infra. 

2 VII "Va. Law Reg.," 79, 97. 

3 Ridley v. Sherbrook (1866), 43 Term. 569, 577. 

4 U. S. Const., Art. IV, § 4. 

5 Luther v. Borde7i (1849), 7 How. 1, 43. 



EXECUTIVE INTERVENTION 95 

out in the foregoing quotation, the President acting on the 
application of one of the two claimants of the governorship, 
who incidentally was a member of his own political party, 
recognized him as the executive of the State and took measures 
to call out the militia to support his authority. Thus President 
Tyler upset the People's Constitution of 1841 in Rhode Island.^ 
On the other hand. President Lincoln gave validity to the 
extremely factional loyal government of Virginia by recognizing 
it as the lawful government of that State. This recognition is 
all that gives validity to the dismemberment of that State 
and the creation of West Virginia. 

The repeated acts of the United States in all its departments, 
recognizing the loyal government of Virginia of which the legislature 
in question was a part, as an existing State government, stamped 
that government and legislature as legal and valid. For over four 
years after the establishment of the loyal government of Virginia, 
the President of the United States was engaged, in concert with that 
government, in expelling from her borders the rebel invaders.^ 

These two instances demonstrate not only the power of the 
Federal executive, but also the power of the state executive. 
In one case it was the Governor under the old regime, and in the 
other the Governor under the new regime that took the steps 
to secure intervention by the President of the United States. 

It should be noted, however, that the President has no power, 
under the constitution, to intervene in the internal affairs of 
a State except upon the request of some one claiming to be the 
State government. 

The two objects for which the Federal government may 
intervene are to protect the State against internal violence, and 
to guarantee to the State a republican form of government. 

If the intervention is for the purpose of protecting the State 
from internal violence, the express terms of the constitution 
provide that such protection shall be furnished only "on 
application of the Legislature, or of the executive (when the 
Legislature cannot be convened)." ^ 

In the case of intervention for the purpose of guaranteeing 

1 See pp. 21-22, supra, on "Dorr's Rebellion." 

2 Jameson, p. 172. 

3 U. S. Const., Art. IV, § 4. 



96 CONSTITUTIONAL CONVENTIONS 

a republican form of government, this requirement of a request 
is not so clear, not being expressly mentioned. 
Thus Braxton suggests: 

If any State of the American Union should attempt to lay 
aside its republican form of government, and substitute in its 
stead that of an irresponsible, omnipotent Convention, combining 
in itself all the powers of Government, (Legislature, Judicial and 
Executive,) even for a single day, it would clearly be ground for 
the forcible intervention of the Federal authority, to put down 
and stamp out a government so foreign to all ideas of a free 
republic.^ 

But it is arguable that this clause, too, is for the protection 
of the States, and cannot be invoked unless a State itself 
requests it. 

Thus we see that in some instances executives can prevent 
the holding of a convention and in some instances ratify or 
nullify its action, but there has been no way suggested in which 
an executive may, pending a conventional change, interfere 
with the details of the convention procedure. 

1 VII "Va. Law Reg.," 79, 91. 



Chaptee VIII 
THE CONVENTION ACT NOT AMENDABLE 

Judge Jameson's book on constitutional conventions was 
written for the sole purpose of proving the supremacy of the 
legislature over the convention. He treated the question of 
the power of the legislature to amend the statute calling a con- 
vention as being merely a question of the right of the legisla- 
ture to control the convention; whereas in reality it involves 
three questions: i.e., the power of the legislature, the source 
of the statute, and whether the legislature can amend an act 
passed by the people. 

The first of these three questions, namely, whether the 
legislature can control the convention, will be considered in 
the next chapter. In that consideration we shall see that 
restrictions, which the legislature attempts to impose upon a 
convention, are probably not binding unless ratified by the 
people; precedents to the contrary being divisible into cases 
in which the electorate did the restricting, cases in which the 
restrictions were acceptable to the convention, and cases in 
which the restrictions were imposed by an outside sovereign. 
The instances, there discussed, of legislative interference by 
other means than the original convention act or amendments 
thereto do not concern us here. 

The second of the three involved questions was considered in 
Chapter V. There we saw that the people enact the convention 
act where they have the initiative, or where the legislature sub- 
mits the entire act to them for ratification; probably, where they 
vote to hold a convention under the act; and possibly, where 
they merely elect delegates under the act, or where they ac- 
quiesce in an act by not invoking the referendum against it. 
It is possible that even constitution provisions for the holding of 
a convention become popular enactments because the people 
act under them, either by voting for the convention, or even 
merely by voting for delegates. 



98 CONSTITUTIONAL CONVENTIONS 

The present chapter will be devoted to the thu'd question 
involved, namely, whether the legislature can amend an act 
of this sort, assuming it to have been passed by the people. 

Where the facts show, or judicial decisions hold, that the con- 
vention act was passed by the legislature, the legislature clearly 
has the power to amend this act; unless we adopt the theory of 
the Pennsylvania Supreme Court, already discussed,^ to the 
effect that the mere participation by the people in the election 
of delegates under a convention act passed by the legislature 
alone amounts to a ratification and adoption of that act by the 
people, and makes it the act of the people rather than of the 
legislature. Under that theory, all convention acts would owe 
their force and validity to a popular vote, unless we can assume 
the case of a convention with delegates which are chosen by the 
legislature.^ 

This leads us to the main question to be considered in this 
chapter: namely, whether, if the people enacted the conven- 
tion act, the legislature can amend it. 

In order to present this sole question, without any diverting 
complications, we must assume: (1) that the people did origi- 
nally pass the convention act in its entirety,^ and (2) that the 
matter which the legislature proposes now to add to it is matter 
within the scope of ordinary legislative powers.^ Let us there- 
fore make these two assumptions, merely, however, for the 
purposes of this chapter. 

A discussion of the main subject has usually been very much 
involved in a consideration of the other two, which we are here 
attempting to exclude. An attempt will be made, however, to 
select for the purposes of this chapter so much of the authorities 
as relates solely to the subject matter of this chapter. 

The clearest statement on this subject is contained in the 
opinion rendered by the New York Supreme Court to the 69th 
New York Assembly in 1846. It is as follows : 

^ See p. 72, supra. 

2 This was the case with respect to the first of the two Georgia conventions 
in 1788. Jameson, p. 135. Constitutional commissions may perhaps be re- 
garded as such conventions. Dodd, pp. 262-265. 

^ See Chapter V, supra. 

^ This assumption is incorrect (see pp. 62-65, supra), but must be postu- 
lated for the purposes of the present argument. If the argument fails (as it does) 
even with this assumption, a fortiori when this assumption is found to be 
incorrect. 



THE CONVENTION ACT NOT AMENDABLE 99 

The next question is, " Whether this legislature has any power to 
alter or amend that law." As a general rule, the legislature can 
alter or annul any law which it has power to pass. A proper 
solution of the question proposed by the Assembly involves, 
therefore, an inquiry concerning the source from which the act of 
1845 derives its obhgation. 

If the Act of the last session is not a law of the legislature, 
but a law made by the people themselves, the conclusion is obvious, 
that the legislature cannot annul it, nor make any substantial 
change in its provisions. If the legislature can alter the rule of 
representation, it can repeal the law altogether, and thus defeat 
a measure which has been willed by a higher power.^ 

Another expression of opinion to the same effect is as follows : 

In ascertaining the powers of the Convention, we cannot look 
to the Act of February, 1901, passed after the Convention had been 
ordered by the People; and that the limitations imposed by that 
Act, which was never submitted to, nor ratified by the People, are 
of no binding force.^ 

The author knows of no decisions or court opinions contra. 
The recent opinion of the Supreme Court of Massachusetts, 
although it appears to support the author's proposition, is 
not in reality in point, for the ground on which it declares the 
particular convention act to be unamendable, is merely the 
unconstitutionality of the particular subject matter.^ 

Jameson has collected a number of decisions to the effect 
that the legislature may amend statutes which have been sub- 
mitted to the people for a vote."* This is undoubted law. But 
we should note: (1) that none of these decisions related to con- 
vention acts, and (2) that convention acts are not an exercise 
of ordinary legislative power. ^ These two considerations should 
be sufficient to differentiate the cases cited by Jameson. 

If Jameson had lived in the days of the initiative and refer- 
endum, he might well have added cases like the following: 

1 Journal, 69th N. Y. Assembly, pp. 919 and 920. 

2 Braxton, VII "Va. Law Reg.," 100, 101-102. 

3 1917, Mass. Senate Doc, 512. 
* Jameson, pp. 398-401. 

5 See pp. 62-65, 80-83, supra. 



100 CONSTITUTIONAL CONVENTIONS 

The Supreme Court of every state having an initiative and 
referendum constitutional provision similar to that of this state 
which has been called upon to determine the question has held that 
the Legislature has the power to repeal or amend the initiated 
law.^ 

But in these cases, the powers of the legislature to amend 
are always expressly based upon the theory that the people, 
in initiating legislation, are merely exercising the legislative 
function which for ordinary occasions they have delegated to 
the legislature. Ratione cessante, cessat ipsa lex. A conven- 
tion act, not being within the legislative function,^ it is not so 
amendable. In fact, as the extralegislative power which the 
legislature has to frame a convention act exists only ex neces- 
sitate,^ it is probable that this power does not exist in States 
which have adopted the initiative and referendum. Thus 
neither the cases cited by Jameson, nor the more modern cases 
arising under the initiative and referendum are authority for 
the proposition that the legislature can amend a convention 
act. 

The author has been unable to find any authorities which 
express an opinion that the legislature may amend a convention 
act, if originally enacted by the people; and it is possible that, 
in the cases in which legislatures have actually amended con- 
vention acts, they have proceeded upon the theory that such 
acts were not enacted by the people, rather than upon the 
theory that, although the people had enacted them, the legisla- 
ture could amend them. Even when the legislature has passed 
the original convention act after the popular vote authorizing 
the convention, it is arguable that the people choose the legis- 
lature as their agent for the special extralegislative purpose 
of framing the convention act,^ and that when this purpose is 
fulfilled, the legislature becomes quoad hoc, functus officio. 
In plain English, the job being completed, the legislature has 
no further powers in that connection. 

In the following described cases, convention acts have been 
amended by legislatures. 

1 Richards v. Whisman (1915), 36 S. D. 260, 272. 

2 See pp. 62-65, 80-83, supra. 
^ See p. 47, supra. 

^ See pp. 73-74, supra. 



THE CONVENTION ACT NOT AMENDABLE 101 

New York Assembly of 1845 passed a statute for the holding 
of a convention in a certain detailed manner, if the people 
should so vote at the next election. The people so voted. The 
Assembly of 1846 then proceeded to amend the convention act, 
so as to change the system of apportionment of delegates. 
But before doing this, they asked the opinion of the Supreme 
Court of that State as to whether they had the power to do so. 

The court replied that the convention act was the act of the 
people, and that therefore the legislature had no power to 
amend it. The court's language in this connection has been 
given earlier in this chapter.^ The legislature, however, dis- 
regarded the advice of the court and amended the act, and the 
delegates to the convention were elected under the act as 
amended.^ 

The validity of this action by the legislature was never ques- 
tioned by the convention. But this is not to be wondered at; 
for had the delegates declared this action to be illegal, they 
would thereby have declared their own election illegal, and their 
own seats vacant, and would have thus rendered themselves 
incompetent to make the very decision which they were making. 
The only tenable decision which the delegates could make was 
to sustain the validity of the act under which they had obtained 
their seats. 

A similar situation was pointed out by the United States 
Supreme Court when it held that the only possible tenable 
decision by a state court would be to uphold the legality of 
the constitution under which the judges themselves held their 
seats. The language of the court in this connection is as 
follows : 

And if a State court should enter upon the inquiry proposed in 
this case, and should come to the conclusion that the government 
under which it acted had been put aside and displaced by an 
opposing government, it would cease to be a court, and be incap- 
able of pronouncing a judicial decision upon the question it under- 
took to try. If it decides at all as a court, it necessarily affirms the 
existence and authority of the government under which it is 
exercising judicial power.^ 

^ See p. 99, supra. 

2 Jameson, p. 387. 

3 Luther v. Borden (1849), 7 How. 1, 40. Compare the cases quoted, pp. 157- 
158, injra. 



102 CONSTITUTIONAL CONVENTIONS 

Not only was this action by the New York Assembly 
never questioned by the convention; it was never questioned at 
all. Thus here we have a case of a legislature successfully over- 
ruling a court. 

The Berlin controversy in Massachusetts furnishes another 
example of a legislature successfully amending a convention 
act. 

In 1853 the legislature of Massachusetts, emboldened by 
the example of the New York Assembly, attempted to follow 
that example. After the ratification of the convention act of 
1852 by the people, the legislature struck out the provision 
that the election of delegates should be by secret ballot. The 
election was held under the amended law, for the candidates 
had no other alternative except to withdraw from the contest. 
Nevertheless, great indignation was aroused by this action of 
the legislature. 

One of the first and most bitterly debated questions, there- 
fore, which arose in the convention of 1853 was whether the 
legislature had any right so to override the action of the people. 
A complete repudiation of this action, however, would as in the 
New York case, have had an embarrassing result; for if the 
legislative action was illegal and void, why then the election 
held under it was void, and the delegates so elected would not 
be entitled to their seats. 

Similarly with the delegates to the Massachusetts convention 
of 1853. Accordingly they seated themselves, thereby ratifying 
the action of the legislature, and then proceeded to excoriate 
the legislature for its action. 

The vacancy from the town of Berlin furnished the op- 
portunity for criticizing the legislature. Henry Wilson, the 
"Natick Cobbler," who later became Vice President of the 
United States, had been elected from both Natick and Berlin, 
and had declined election from the latter. The question arose 
as to how to instruct the selectmen of Berlin to fill the vacancy. 
Ben Butler seized the opportunity and moved that the vacancy 
be filled in the manner provided by the original convention 
act, rather than in the manner provided by that act as amended 
by the legislature. Rufus Choate led the defense of the legis- 
lature, but he was overwhelmingly defeated. Thus the con- 
vention went on record as repudiating the idea that the 



THE CONVENTION ACT NOT AMENDABLE 103 

legislature can amend a convention act after its adoption by 
the people.^ 

These were both cases in which the people had voted for the 
convention, under the convention act. 

We saw in an earlier chapter that there was some authority 
for the proposition that the people assume, ratify, and become 
responsible for a convention act, by merely participating in 
the election of delegates to the convention to be held under it.^ 
In one such case there has been an attempt at legislative amend- 
ment. This occurred in the bloody days in Kansas just prior 
to the Civil War. The Kansas legislature of 1855 took the sense 
of the electorate at the October election of 1856 on the advisa- 
bility of holding a constitutional convention. The electorate 
approved. The legislature accordingly passed an act providing 
for the choice of delegates in June and for a convention in 
September, which was to have full discretion as to how to sub- 
mit its constitution for ratification. So far in the proceedings, 
the slavery men had been in control, and they controlled the 
convention. The convention submitted two alternative con- 
stitutions to be voted on, December 21, 1857, but did not 
provide any method for the rejection of both. 

The free-state legislature, which was elected in October of 
that year, met December 17 and voted to submit the whole 
question of the constitution on January 4. The form with the 
strongest slavery provisions carried in December, but both 
constitutions were rejected in January; only slavery men par- 
ticipating in the first election and only free-staters in the second. 

Thus the question was presented to Congress as to the 
authority of the legislature to amend the convention act after 
the people had elected delegates under it and thereby ratified 
it. The national House decided that the legislature did have 
this power, but President Buchanan and the national Senate 
decided that it did not; so no decision was reached, and the 
matter was deadlocked.^ 

Virginia presents the most recent example of an attempt to 
amend a convention act. The legislature of 1900 submitted 
to the voters the question "Shall there be a convention to 
revise the constitution and amend the same?" ^ The vote was 

^ See Jameson, pp. 333-338. ^ See p. 72, supra. 

3 Jameson, pp. 534-536. « Va. Acts 1900, c. 778. 



104 CONSTITUTIONAL CONVENTIONS 

favorable. Accordingly in 1901 the legislature passed a statute 
prescribing the details for the convention.^ Now the people 
having voted that the convention should revise and amend 
the constitution, a provision in the second act requiring the 
convention merely to frame and submit was considered by 
many to be an attempt by the legislature to amend a vote of 
the people.^ Accordingly the convention refused to submit, 
and the constitution promulgated by the convention was ac- 
cepted by the State officials and was sustained by the courts.^ 

So far as the author knows, these are the only cases where 
a legislature has attempted to amend a convention act, enacted 
by the people rather than by the legislature. 

From all the foregoing we see that, although an ordinary 
bit of legislation enacted by the people is amendable by the 
legislature, nevertheless a convention act, not being ordinary 
legislation, is not so amendable. But it is possible for certain 
sorts of amendments to succeed, by reason that the nature of the 
amendment leaves to the convention and the people no choice 
but to acquiesce in the amendment or to give up the con- 
vention. Successful examples of this limited sort are not 
precedents for the general proposition that the legislature can 
make any sort of amendment. 

1 Va. Acts 1901, c. 243. 

2 VII "Va. Law Reg.," pp. 100-106. 

3 Taylor v. Commonwealth (1903), 101 Va. 829. 



Chapter IX 
LEGISLATIVE CONTROL 

The question of legislative control of the convention was 
the main consideration which induced Judge Jameson to write 
his book. 

Dodd says: 

Judge J. A. Jameson in his work on Constitutional Conventions 
took the position that a convention is absolutely bound by re- 
strictions placed upon it in the legislative act by which it is called. 
Judge Jameson took this view because he thought it necessary that 
a convention be completely subordinate to the existing govern- 
ment.^ 

Under Judge Jameson's theory a constitutional convention 
called by a vote of the people may be restricted by simple legis- 
lative act so that it may not revise or propose the revision of any 
part of the existing constitution which the legislature may forbid 
it to touch. The convention is made subordinate to an organ of 
the existing government. Judge Jameson proceeded on the assump- 
tion that a constitutional convention must possess sovereign power 
— that is, all of the power of the state — or that it must be strictly 
subordinate to the regular legislature. He could conceive of no 
middle ground between these extremes. In attempting to demolish 
the theory that the convention is sovereign, he went to the other 
extreme and really made the legislature the supreme body with 
respect to the alteration of state constitutions, for under his view 
a convention may be restrained by a legislature as to what shall 
be placed in the constitution, and no alteration can be made with- 
out legislative consent.^ 

Legislative interference with a convention may take place 
in any of five ways, namely (1) by inserting restrictions in the 
original convention act; (2) by amending that act; (3) by 
inaction; (4) by withholding support; or (5) by governmental 

1 Dodd, p. 73. ^ Dodd, pp. 77-79. 



106 CONSTITUTIONAL CONVENTIONS 

recognition. These five methods will first be analyzed and then 
discussed in order. The question of the power of the legislature 
to control the convention by means of the original convention 
act depends largely on the question of whether the legislature 
passes that act at all, which has already been considered in 
Chapter V. If it be found that the voters enacted any given 
convention act, the question will then take the form: Can the 
electorate control the convention? The question in this form 
will be considered in Chapter X. 

The power of the legislature to control the convention by 
means of an amendment to the original convention act depends 
largely upon whether the legislature has any right to amend 
the act. This was considered in the preceding chapter. The 
questions of legislative inaction and of legislative recognition 
of a new constitution require no analysis. 

Let us, then, first consider the general power of the legis- 
lature to control the convention by means either of the original 
act or of an amendment (otherwise lawful) thereto. Jameson 
built up his book around the doctrine of legislative supremacy, 
because he could not conceive of conventions and legislatures 
being coordinate. The antithesis of the doctrine of legislative 
supremacy is the doctrine of convention sovereignty, which 
will be discussed in a later chapter.^ The reverse of the theory 
that the legislature has power to control the convention is the 
theory that the convention has extraordinary power to enact 
ordinary legislation. This is a phase of the doctrine of conven- 
tion sovereignty. The question of whether the legislature has 
power to require oaths by the convention delegates and sub- 
mission of the new constitution to the people will be discussed 
in the chapters on those subjects.^ 

Has the legislature the power to restrict the convention in 
advance? Under a number of the present State constitutions, 
it may be definitely said that a legislature cannot bind a con- 
vention in any way. In New York and Michigan, conventions, 
when authorized by a vote of the people, assemble without 
any legislative action; for in these States constitutional pro- 
visions have been adopted for the express purpose of making 
conventions entirely independent of legislative control; and 
there any effort by the legislature to control the convention's 

^ Chapter XI, infra. ^ Chapters XIV and XVI, infra. 



LEGISLATIVE CONTROL 107 

action would clearly be a violation of the constitution.^ The 
same statement holds with reference to the Missouri con- 
stitution, by the terms of which the only step to be taken by the 
legislature is that of submitting to the people the question as 
to whether a convention shall be held.^ And the same is prob- 
ably true with reference to constitutions which impose upon 
the legislature the one specific duty of providing for the election 
of delegates after the people have decided that a convention 
shall be held. Inasmuch as both bodies are legislative in 
character, a specific power conferred upon the regular legislature 
may perhaps be said by implication to exclude any other 
control over the convention.^ 

By necessary implication, the legislature is prohibited from any 
control over the method of revising the Constitution. The conven- 
tion is an independent and sovereign body whose sole power and 
duty are to prepare and submit to the people a revision of the 
Constitution, or a new Constitution to take the place of the old 
one. It is elected by the people, answerable to the people, and its 
work must be submitted to the people through their electors 
for approval or disapproval.^ 

The Alabama constitution of 1901 expressly confers full power 
upon a convention to act in the drafting of a new constitution, 
thereby excluding the possibility of legislative interference.^ 

The process of amendment of State constitutions in the legis- 
lative manner is absolutely under the control of the State legis- 
latures, except in the States which have adopted the popular 
initiative. Under this procedure no action may be taken except 
upon the initiative of the legislature, this method of altering 
constitutions thus being absolutely subject to legislative con- 
trol. 

The calling of constitutional conventions is also to a large 
extent subject to legislative control, but the convention method 
of altering constitutions is considerably more independent of 
the regular legislature, unless Judge Jameson's theory be 
adopted. The convention loses a large part of its usefulness 
as an organ of the State if it be treated as strictly subject to 
control by the legislature.^ 

1 Dodd, p. 55. 2 jy^dci, pp. 55-56, ^ j)oicL, p. 74. 

« Carton v. Secy, of State (1908), 151 Mich. 337, 340-341. 
B Dodd, p. 74. 6 Dodd, p. 79. 



108 CONSTITUTIONAL CONVENTIONS 

This view was well expressed by the Judiciary Committee 
of the New York convention of 1894: 

It is of the greatest importance that a body chosen by the 
people of this State to revise the organic law of the State, should 
be as free from interference from the several departments of 
government as the legislative, executive and judiciary are, from 
interference by each other. Unless this were so, the will of the 
people might easily be nullified by the existing judiciary or legis- 
lature.^ 

Thus the weight of authority, at least with respect to con- 
ventions authorized by the constitution, is that the legislature 
cannot, or at least ought not to be permitted to, restrict the 
convention in advance. 

Let us, however, discuss a few actual cases in which the legis- 
lature did succeed in restricting the convention. One common 
method of attempted restriction has been for the legislature 
to provide that no delegate should be permitted to take his 
seat in the convention until he should have taken an oath to 
proceed in a certain manner. This course was pursued with 
respect to the North Carolina conventions of 1835 and 1875, 
the Georgia convention of 1833, the Illinois conventions of 
1862 and 1869, and the Louisiana convention of 1898. The last- 
named convention expressly recognized the restrictions as bind- 
ing upon it.^ 

The Georgia convention also took the oath required. The 
North Carolina conventions objected to the oath, but never- 
theless took it and observed the restrictions.^ The two Illinois 
conventions took the oath in a very modified form. Several 
of these cases lose their value as precedents in this connection, 
however; for the convention act was submitted to and approved 
by the people, and hence the restrictions may be said to have 
been placed on the convention by the people and not by the 
legislature.^ 

Dodd says: 

It would seem that these conventions might, had they thought 
proper, have declined to take the oaths, and have organized and 

^ Report of Judiciary Committee, headed by Elihu Root, and unanimously 
adopted by the convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 250. 

2 Dodd, p. 81. 

3 Dodd, p. 81. 4 Jameson, p. 284. 



LEGISLATIVE CONTROL 109 

proceeded to act without doing so, just as was done by the Ilh- 
nois convention of 1862.^ 

In the first of the two Pennsylvania cases arising out of the 
convention of 1872, the Supreme Court issued an injunction 
restraining the convention from submitting its constitution to 
a popular vote in a manner different from that prescribed by 
the legislature.^ 

The Pennsylvania constitution of 1838 contained no provision 
with reference to the calling of a convention, but the legislature 
of 1872 provided for the assembling of a convention, after having 
first submitted to the people the question as to whether or not a 
convention was desired. The act of 1872, under which the con- 
vention assembled, provided that the constitution which it framed 
should be voted upon at an election held in the same manner as 
general elections. . . . The convention disregarded the legislative 
act by providing machinery of its own for the submission of the 
constitution in Philadelphia, and appointed election commissioners 
for this special purpose. . . . An injunction was granted restrain- 
ing the commissioners appointed by the convention from holding 
the election in Philadelphia. The court . . . declared that the 
submission of the constitution in a manner different from that pro- 
vided by law was clearly illegal. The court said that the conven- 
tion had no power except that conferred by legislative act, and 
that any violation of such act or any action in excess thereof 
would be restrained. 

If the calling of a convention is thus assumed to be an exercise 
of regular legislative power, may it not be plausibly argued that 
the convention, when called, is absolutely subject to the conditions 
of the legislative act? This is, to a large extent, the argument of 
Wells V. Bain.^ 

But this decision loses weight in this connection from the 
fact that the court expressly held the convention act to be the 
creature of the people and not of the legislature. 

Jameson bases his theory of legislative supremacy largely 
upon the Pennsylvania decision just discussed. But in doing 
so he fails to notice that a later case in the same volume of Penn- 

^ Dodd, p. 81, n. 15. The matter of oaths will be more fully discussed in a 
later chapter. See pp. 187-190, infra. 
■ 2 Wells V. Bain (1872), 75 Pa. 39. 

3 Dodd, pp. 83-84 and n. 21. 



110 CONSTITUTIONAL CONVENTIONS 

sylvania reports holds squarely that the legislature cannot limit 
the convention, but that the people can and did in this in- 
stance. 

Thus the first Pennsylvania case, interpreted in the light of 
the second, is clearly no authority at all for the doctrine of 
legislative supremacy. The exact language of the second 
Pennsylvania decision is as follows: 

It is simply evasive to affirm that the legislature cannot limit 
the right of the people to alter or reform their government. Cer- 
tainly it cannot. . . . When the people act through a law, the 
act is theirs, and the fact that they used the legislature as their 
instrument to confer their powers makes them the superiors, and 
not the legislature.^ 

And compare the following: 

The restrictions sought to be placed upon conventions by 
legislative acts have not in practice been recognized as of binding 
force, except in a few cases.^ 

First. That a constitutional convention lawfully convened, 
does not derive its powers from the legislature, but from the people. 

Second. That the powers of a constitutional convention are in 
the nature of sovereign powers. 

Third. That the legislature can neither limit or restrict them 
in the exercise of these powers.^ 

Although there is some authority to the effect that the people, 
in voting to permit the legislature to call a convention, thereby 
constitute the legislators their agents to restrict the convention,^ 
yet Dodd is strongly of the opinion that, on the contrary, the 
popular vote should be interpreted as calling for an unrestricted 
convention.^ 

Jameson cites a large number of minor instances in which 
conventions adhered to the terms of the convention act,^ but 
in at least half of these the act had been submitted to the people, 
and in the rest these restrictions were apparently satisfactory 
to the convention, as it accepted them without protest. 

1 Wood's Appeal (1874), 75 Pa. 59, 71-72. 

2 J " Cyc, American Government," 430. 

3 Loomis V. Jackson (1873), 6 W. Va. 613, 708. 

4 Dodd, p. 87, n. 26. 

B Dodd, p. 76. Cf. Braxton, VII "Va. Law Reg.," 100-106. 
^ Jameson, pp. 369-375. 



LEGISLATIVE CONTROL 111 

The instances of successful restraint of territorial conventions 
by Congress, cited by him/ are not in point, for Congress is an 
outside sovereign, not at all comparable to the legislature of 
the territory itself. 

Thus there is a marked scarcity of instances in which the 
legislature has succeeded in restricting the convention. In the 
following instances the legislature failed to impose these restric- 
tions successfully. 

The second Pennsylvania case turned, among other things, 
on the point that the convention act had imposed the restric- 
tion that the convention should not alter the Bill of Rights. 
The convention altered the Bill of Rights, and this was held 
not to invalidate the new constitution.^ If we follow Jameson 
in treating this as a legislative restriction, we have here an ex- 
ample of a successful disregard of a restriction, and of the judi- 
cial sustaining of this disregard. The convention itself treated 
this as a legislative restriction, and altered the Bill of Rights, 
not because they thought it needed altering, but solely as a 
slap at the legislature.^ Treated, however, as a popular re- 
striction, this decision will be discussed in the next chapter. 

We have already seen that the Illinois conventions of 1862 
and 1869 successfully disregarded the legislative requirements 
of an oath by the delegates.^ 

The Georgia convention of 1789, called for the sole purpose of 
accepting or rejecting a constitution which had been prepared 
by the convention of 1788, proposed certain alterations, which 
were laid before a third convention.^ 

The New York convention of 1867 sat beyond the time fixed 
by the legislature for the submission of its work to the people, 
and submitted its work at a later date.^ The Alabama conven- 
tion of 1901 increased the pay of its delegates above the amount 
limited by the legislature.'^ 

The statute calling the Michigan convention of 1908 provided 
that the constitution should be submitted to the people in 
April. The convention ordered its submission in November. 
The Secretary of State doubted the power of the convention 

1 Jameson, pp. 367-368. 

2 Wood's Appeal (1874), 75 Pa. 59. 

3 Deb. Pa. Conv. 1872, Vol. VIII, pp. 54, 57, 63. 
* Jameson, p. 284. 

6 Jameson, pp. 135-136. « Dodd, p. 82. ^ Dodd, p. 82. 



112 CONSTITUTIONAL CONVENTIONS 

to fix a date other than that set by the legislature and refused 
to comply with the order of the convention; whereupon the 
ofiicers of the convention obtained a mandamus from the 
Supreme Court and compelled submission at the date set by 
the convention.^ The reasons for the mandamus were varied, 
but two of the court, including the Chief Justice, said: 

By necessary implication, the legislature is prohibited from 
any control over the method of revising the constitution. The 
convention is an independent and sovereign body. ... It is 
elected by the people, answerable to the people, and its work must 
be submitted to the people through their electors for approval or 
disapproval. . . . The convention was the proper body to de- 
termine at what election it should be submitted unless that is 
fixed in the present constitution. ... I find no language in the 
constitution from which any implication can arise that this power 
was vested in the legislature.^ 

Even Judge Hooker in his dissenting opinion in that case 
said, "The convention has a sphere in which the legislature 
cannot intrude, a discretion that it cannot control." ^ 

The Kentucky convention of 1890-1891 made in the con- 
stitution some changes which they did not submit to the people, 
although required to do so by the legislative act.^ The Virginia 
convention of 1901-1902 promulgated its entire constitution 
without a popular vote, although required by the convention 
act to submit the constitution to the people.^ In both of these 
cases, the changes were recognized by the existing government 
and acquiesced in by the people; and the courts refused to 
interfere.^ Similarly the Illinois convention of 1847 omitted 
to submit one of its amendments.^ 

The Alabama legislature, in its act providing for the con- 
vention of 1901, forbade the convention to do certain things 
and required that it incorporate certain provisions into the 
new constitution. The legislative restrictions were not ob- 

1 Dodd, pp. 84-85. 

2 Carton v. Secy, of State (1908), 151 Mich. 337, 340-343. 

3 Carton v. Secy, of State (1908), 151 Mich. 337. 

4 Dodd, pp. 85-86. 
6 Dodd, p. 86. 

6 Miller v. Johnson (1892), 92 Ky. 589; Taylor v. Commonwealth (1903), 101 
Va. 829. 

7 Dodd, p. 86, n. 23. 



LEGISLATIVE CONTROL 113 

, served in full, and an effort was made to prevent future legis- 
lative interference with conventions by inserting into the 
constitution of 1901 the provision that "Nothing herein con- 
tained shall be construed as restricting the jurisdiction and 
power of the convention, when duly assembled in pursuance of 
this section, to establish such ordinances and to do and perform 
such things as to the convention may seem necessary or proper 
for the purpose of altering, revising or amending the existing 
constitution."^ 

The insertion of this provision was clearly intended as a 
rebuke to the legislature. 

Dodd sums up the matter of legislative restrictions in the 
following words: / 

From the above discussion it may be seen that where the question 
has been raised the conventions and courts have in but a few cases 
taken the view that constitutional conventions are absolutely 
bound by restrictions sought to be placed upon them by legislative 
acts. The restrictions placed upon conventions have certainly 
not in practice been recognized as of binding force, except in a few 
cases, and theoretically the convention in the performance of its 
proper functions should be independent of the regular legislative 
organs of the state. . . . The good sense of the people has ordi- 
narily caused both legislatures and conventions to restrict them- 
selves to their proper spheres. The general obedience of con- 
ventions to the legislative acts under which they were called has 
been due to the fact that legislative acts have usually required only 
those things which the convention would have done without 
legislative requirement; cases of conflict arise only when a legisla- 
ture attempts to restrict a convention in such a manner as to 
interfere with its proper functions, and such cases have not been 
numerous. . . . The possibility of conflict is avoided if the con- 
vention as an organ for constitutional revision is entirely freed 
from the control of the regular legislature.^ 

Both the legislature and the convention are chosen by the 
people, and when it is remembered that abler men are usually 
chosen to conventions than to legislatures, it is perhaps clear 
that conventions are apt to be equally as competent to exercise 
the limited powers committed to them as are legislatures to instruct 
the conventions as to what they shall or shall not do. The con- 
vention is less apt to abuse its power in the drafting of a con- 

1 Dodd, p. 82. 2 Doj^^ pp. 9i_92. 



114 CONSTITUTIONAL CONVENTIONS 

stitution, than is the legislature in placing limitations upon the 
convention, if the legislature were assumed to have such power.^ 

As a rule, then, constitutional conventions are subject only to 
the following restrictions: (1) those contained in or imphed from 
provisions in the existing state and federal constitutions, and (2) 
in the absence of constitutional provisions, those derived or implied 
from the limited functions of conventions. To these restrictions 
Jameson and others would add those imposed by legislative acts 
under which conventions are called, but such restrictions are 
certainly not yet recognized as of absolute binding force, except 
in Pennsylvania, and should not be so recognized if the convention 
is to be an instrument of great usefulness.^ 

Even Jameson hesitated to push his doctrine of legislative 
supremacy to its extreme limits.^ For example, he took the 
position that legislative interference with a convention is 

subject to the limitation, that its requirements must be in harmony 
with the principles of the convention system, or, rather, not incon- 
sistent with the exercise by the convention, to some extent, of its 
essential and characteristic function.^ 

Thus Jameson in effect promulgates the doctrine of reason- 
able restrictions; that is, he believes that the validity of 
legislative restrictions depends upon whether or not they 
interfere with the natural prerogatives of a convention. This 
knocks the very bottom out of the theory of legislative su- 
premacy. 

The right of the legislature to impose reasonable restrictions 
upon a convention is very similar to the right of the legislature 
to impose such restrictions upon the jjudiciary: i. e., the legis- 
lature may prescribe reasonable means and methods for the 
administration of justice, but has no power to deprive the 
courts of any of their inherent functions. 

But even this is open to doubt. The power to restrict the 
judiciary is based upon the fact that court legislation is indis- 
pensable, and must emanate from the legislative body. But 
the convention is a legislative body of a higher order than the 
legislature,^ and can legislate for itself.^ Ratione cessante, 
cessat ipsa lex. 

1 Dodd, p. 80, n. 13. ^ Dodd, p. 92. ' Dodd, p. 73. 

* Jameson, p. 364. ^ See p. 90, supra. ' See pp. 146, 147, infra. 



LEGISLATIVE CONTROL 115 

From all the foregoing we see that the legislature probably 
has no power to restrict either an authorized or a popular 
convention; whenever it has succeeded, this has been due more 
to force of circumstances than to legal rights. Even the power 
to impose reasonable restrictions is doubtful. 

So much for the question as to whether the legislature can 
bind a convention in advance. Let us next consider whether 
the legislature can interfere with the convention method during 
its pendency. 

Dodd says: 

Judge Jameson pushed his theory to its logical conclusion and 
held that a convention, even after etected and assembled, might 
be dissolved by legislative act, or that the legislature might prevent 
the submission of its work to the people.^ 

On this point Jameson himself says: 

If the provisions made by a convention for submitting its work 
to the people are deemed to be inexpedient, whether made with 
or without authority of law, the proper law-making authority 
of the state may repeal or alter them at pleasure.^ 

But it is interesting to note that Jameson amplifies this 
thought by saying that the question has never arisen in practice, 
and by justifying his proposition only in case of treason by the 
convention.^ 

Hon. Joel Parker, however, went even further than Jameson, 
saying: 

I say it was legally competent for the legislature, at the time 
they modified that law, to have repealed it totally, so far as it stood 
a law upon the statute book, to have put an end to all further 
action under it. It might have been done legally. I do not say 
that a revolution might not have occurred in consequence of such 
a proceeding; that is another thing. I am aware, Sir, that such 
a disregard of the will of the people might justify a resort to force; 
but that is another thing. As a law upon the statute book, having 
the force and vigor of a law upon the statute book, and no more, the 
legislature have the same power over it which they have over any 
other law, and they might have repealed it if they had seen fit to 
do so. Why did they not do it? Because they ought not to; be- 

* Dodd, p. 79. * Jameson, p. 421. ^ Jameson, p. 421, n. 2. 



116 CONSTITUTIONAL CONVENTIONS 

cause it was not proper, under the circumstances, that they should 
exercise that power, and they exercised their power in a way that 
they did not think proper. I maintain further, Sir, that I am wilhng 
to place myself upon the issue, that this Convention sits here today 
under that as a statute law and nothing more; and the legislature 
being still in session here, may constitutionally and legally put an 
end to the existence of this Convention as a body assembled under 
the Constitution and under law, before that session closes. (Sen- 
sation.) ^ 

The only reported instance of an attempt by the legislature 
to interfere with a pending convention was when the free-state 
legislature of Kansas, during the bloody days just prior to its 
admission to the Union, attempted to change the date set 
by a convention for the submission of its constitution to the 
people. The pro-slavery men voted at one election and the 
free-state men at the other, with two different results. Congress 
on one hand disagreed with President Buchanan and the Senate 
on the other as to which result was valid, and so the con- 
stitution adopted at the date originally set by the convention 
failed of national recognition. 

The New York Supreme Court, however, pooh-poohs the 
idea that the legislature has the power to nullify the work of 
the convention: 

If the legislature can alter the rule of representation, it can 
repeal the law altogether and thus defeat a measure which has 
been willed by a higher power.^ 

Dodd's foregoing reference to Jameson is seen by the context 
to be disapproving. And all the authorities to the effect that 
the legislature cannot amend the convention act, are a fortiori 
authorities for the proposition that it cannot repeal it. 

Thus the weight of authority is that the legislature may not 
restrict a convention or nullify its work, but that the people 
may. This power of the people will be discussed in the next 
chapter. 

There is, however, one way in which the legislature can very 
effectively interfere with amendment by convention. We have 
already seen the dependence of the people upon legislative 

1 Deb. Mass. Conv. 1853, Vol. I, p. 155. 

2 Journal, 69tli N. Y. Assembly, p. 920. 



LEGISLATIVE CONTROL 117 

means for expressing their will.'^ Without the assistance of either 
constitutional provisions or legislation, the people cannot pass 
on the question of calling a convention. Without such assist- 
ance, a convention cannot be elected and held. Thus in those 
States in which the constitution does not provide all the neces- 
sary details for holding a convention, the legislature can 
successfully block the popular will by mere inaction. We have 
already seen how in 1886 in New York, the popular vote to 
hold a convention was thwarted by the legislature, so that this 
convention was not held until 1894.^ 

Similarly in New Hampshire. Although the vote taken under 
act of July 4, 1860, showed a majority in favor of calling a 
convention, the Senate and House of Representatives at the 
June session, 1861, failed to agree upon a bill for that purpose. 
Again the vote under act of August 19, 1864, showed a majority 
of the voters in favor of calling a convention; but the legislature 
of the June session, 1865, by joint resolution decided to take 
no action in the matter.^ 

The courts have recognized this power of the legislature to 
prevent the holding of a convention. Thus the Supreme Court 
of Pennsylvania says of the vote of the people in favor of calling 
a convention : 

It was not even a mandate, further than the moral force con- 
tained in an expressed desire of the people. It is very evident, 
had the matter dropped there, and the legislature had made no 
call, no convention and no terms would ever have existed. Not a 
Hne, nor a word, nor a syllable in this act expresses an intent of 
the people to make the call themselves, or on what terms it shall 
be made, or what powers should be conferred.* 

Similarly there are many ways in which the legislature, al- 
though keeping within its proper functions and powers, can 
greatly hamper the work of a convention. Holcombe in his 
recent book has clearly pointed out the distinction between 
legal and illegal attempts at interference. He says: 

The convention should be free to disregard any special limita- 
tions which the legislature may seek to impose subsequently to the 

^ See pp. 76-77, supra. 

^ See p. 76, supra. 

3 Colby, 1912 Manual of N. H. Const., pp. 209-211. 

" Wells V. Bain (1872), 75 Pa. 39, 50-51. 



118 CONSTITUTIONAL CONVENTIONS 

vote by the people sanctioning the call of the convention, but it 
should not be free to disregard the general law of the state, whether 
expressed in the constitution or in the acts of the legislature. A 
convention, for example, may disregard a legislative act, not sub- 
mitted to the people for their approval, which seeks to limit the 
duration of the deliberations of the convention, but it may not 
disregard a legislative act providing that appropriations for the 
support of the convention shall lapse after a limited period. In 
other words, the executive or judiciary of the state would not be 
justified in turning a convention out of doors after the period 
set by the legislature for the termination of its deliberations had 
expired, but they would be justified in withholding further funds. 
The convention might continue in session, but it would have to 
look to the people for indemnification for any further expenses 
that might be incurred.^ 

Thus we see that although the legislature cannot directly 
interfere with a convention, it can do so indirectly by inaction, 
or by withholding governmental support. In event the latter 
is attempted, however, the convention probably has full inci- 
dental powers to support itself, for it can pledge the faith of the 
State to pay for its legitimate expenses.^ 

There is one further way in which the legislature can inter- 
fere with a convention. It can determine the validity or invalid- 
ity of the new constitution, if that be a political question. Thus 
Braxton says that any act of the existing government in recog- 
nition of irregular constitutional changes should be regarded 
as acquiescence and ratification by the people.^ 

And we have already seen that when the Federal executive 
interferes to recognize or suppress a State government, the State 
executive participates to some extent in this action by request- 
ing it.^ Similarly the State legislature may participate; in fact, 
the Federal Constitution provides that intervention to restore 
order shall be done only at the request of the legislature of the 
State if that legislature be in session.^ 

Thus, from all the foregoing discussion, we see that, although 
the legislature apparently has no power to restrict a convention 

^ Holcombe, State Government, pp. 127-128. 

2 See pp. 173, 177, infra. 

3 VII " Va. Law Reg.," 79, 97. 
* See p. 95, supra. 

B U. S. Const., Art. IV, § 4. 



LEGISLATIVE CONTROL 119 

in advance, or to nullify its results by abolishing it or by pre- 
venting the submission of its work to the people, yet the legis- 
lature does have power in many cases to prevent the holding of 
a convention. And in event of a dispute as to the validity of a 
new constitution, the legislature may possibly be in a position 
to determine this question by the political act of either recog- 
nizing or refusing to recognize the change, or by calling on the 
Federal government for support or suppression. 

The legal standing of a convention may also depend upon 
recognition or nonrecognition by the Federal legislature.^ In 
the case of a territorial convention, this power is absolute.^ 

On legislative control in general see also the first three pages 
of the next chapter. 

1 Cf. Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118. 

2 U. S. Const., Art. IV, § 3. 



Chapter X 

POPULAR CONTROL 

Can the electorate control the convention? This question 
is differentiable and has been differentiated from that of legis- 
lative control, discussed in the last chapter. Thus Dodd says: 

Mr. Braxton takes the view that a convention is bound by 
a legislative act which has been approved by the people upon a 
popular vote, but not by other legislative acts.^ 

Braxton himself says: 

The Legislature has no authority to enlarge or curtail the powers 
of the constitutional convention, which derives its authority 
directly from the people.^ 

If it be true, as the writer endeavored to show in his first arti- 
cle above referred to, that the people alone have the power of enact- 
ing or changing the Fundamental Law; that from them alone 
does the Convention derive its powers in that regard; and that 
they can confer just so much, or so little, of those powers upon the 
Convention as they please — then it necessarily follows that the 
Legislature (which is not "the People") cannot prescribe the Con- 
vention's powers. 

If this conclusion be sound, it follows that, in ascertaining the 
powers of the Convention, we cannot look to the Act of February, 
1901, passed after the Convention had been ordered by the People; 
and that the limitations imposed by that Act, which was never sub- 
mitted to, nor ratified by the People, are of no binding force.^ 

This draws a clear distinction between the lack of power of 
the legislature to control the convention, and the power of the 
people to control it. This distinction is the real answer to the 
question of whether the convention is bound by the convention 

» Dodd, p. 76, n. 7. 

2 VII "Va.Law Reg.," 79, 96-97. 

3 VII "Va. Law Reg.," 100, 101-102. 



POPULAR CONTROL 121 

act. If the convention act be the creature of the people, the 
convention is bound. 

Most of the cases usually cited [in support of legislative 
supremacy will be found on analysis merely to sustain the doc- 
- trine of popular supremacy, i. e. the limitation of the conven- 
tion to the powers expressly or impliedly delegated to it by the 
people. Thus the Pennsylvania case, which is usually cited as 
the chief support of the doctrine of legislative supremacy is 
seen in the light of a statement later made by the same court 
to hold merely that the people can restrict the convention by 
the terms of the convention act.^ Most of the cases cited in 
favor of legislative supremacy are open to the same construc- 
tion. Similarly any case which may possibly be cited in denial 
of the right of the people to limit the convention may be found 
on analysis to depend upon a misconstruction of the situation, 
the court assuming that the question of legislative supremacy 
was involved and hence intending to deny merely the existence 
of any legislative control. 

The foregoing distinction, namely, that although the legis- 
lature may not restrict the convention, the people may, has 
been variously expressed as follows: 

It is true that the legislature cannot limit the Convention; but 
if the people elect them for the purpose of doing a specific act or 
duty pointed out by the act of the legislature, the act would 
define their powers. For the people elect in reference to that and. 
nothing else.^ 

Proceeding from the accepted rule that whatever powers the 
convention may possess must be derived from the people, he argues 
that the terms of the vote actually adopted by the people are the 
evidence of the extent of these powers, and that any restrictions 
wliich the legislature may seek to impose without the express ap- 
proval of the people are unauthorized and hence invaHd. The 
legislature may propose to the people whatever limitations it 
pleases, but these limitations must be accepted by the people in 
order to take effect upon the convention.^ 

Where, then, it may be asked, must we look for the real limita- 
tions of the Convention's powers, if not to the Act of February, 

1 Wood's Appeal (1874), 75 Pa. 59, 71-72. 

2 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 222-223. 
' Holcomhe, State Government, p. 127. 



122 CONSTITUTIONAL CONVENTIONS 

1901? The answer is "obvious : To the Act of March 5, 1900, under 
which the Convention was ordered to be called. But, it will be 
objected, this is also an Act of the Legislature, and can therefore 
have no more force than the Act of February, 1901, which, being 
subsequent, is really controlling. It will be seen, however, that 
the Act of March, 1900, so far as the Legislature was concerned, 
settled nothing; it was a mere proposition, which acquired bind- 
ing force only by its acceptance by the People, who alone may be 
said to have enacted it.^ 

So much for the distinction between the results of legislative 
and popular enactment. The above quotations establish the 
principle that the people may control their convention in ad- 
vance. The following quotations also support this view. 

The people, therefore, in voting for the holding of a convention, 
not only limited the powers of the convention to the amendment and 
revision, of the constitution of 1875, but required that its action be 
submitted back to them.^ 

This enabling act, which was subsequently adopted by the 
people, prohibited, etc.^ 

The people, when they voted for the holding of the Convention, 
voted for it to be held "in accordance with Act No. 52 of 1896," 
thus instructing their delegates, elected at the same time, to ob- 
serve the limitations placed upon the power of the Convention 
by the act of the Legislature.^ 

Considering that the constitution has vested no authority in 
the legislature, in its ordinary action, to provide by law for sub- 
mitting to the people the expediency of calling a convention of 
delegates, for the purpose of revising or altering the constitution 
of the commonwealth, it is difficult to give an opinion upon the 
question, what would be the power of such a convention, if called. 
If, however, the people should, by the terms of their vote, decide to 
call a convention of delegates to consider the expediency of alter- 
ing the constitution in some particular part thereof, we are of 
opinion that such delegates would derive their whole authority 
and commission from such vote; and, upon the general princi- 
ples governing the delegation of power and authority, they would 

1 Braxton, VII "Va. Law Reg.," 100, 102. 

2 Ex parte Birmingham Ry. (1905), 145 Ala. 514, 529. 

3 La. Ry. v. Madere (1909), 124 La. 635, 641. 
« State V. Capdevielle (1901), 104 La. 561, 569. 



POPULAR CONTROL 123 

have no right, under such vote, to act upon and propose amend- 
ments in other parts of the constitution not so specified.^ 

Act No. 1 of the Extra Session of 1913 caUing for a conven- 
tion with full power and authority to frame and adopt, without 
submission to the people, a new Constitution of the state, subject, 
however, to a number of restrictions enumerated in said act, hav- 
ing been adopted by the people, constituted a mandate to the con- 
vention of 1913.^ 

The author knows of no judicial authority in opposition to 
the doctrine that the people can restrict the convention in 
advance. 

A recent article in the Harvard Law Review, however, doubts 
the practicability of the popular power to restrict the conven- 
tion by adopting a convention act framed by the legislature. 

Where the limitations are included in the popular call for a con- 
vention, they should be binding, probably. If the people initiated 
the call, this would be clear. But where, as is more usual, the legis- 
lature frames the call, this may in substance give the legislature 
power to restrict. The only way in which the people could avoid 
such a restriction would be to reject all proposals containing it, 
and elect a legislature which would submit a proposal without it; 
a clumsy and inadequate remedy.^ 

In other words, when the Legislature frames the convention 
act, the people must either adopt the restrictions suggested by 
the legislature or else give up having any convention at all. 

Thus it may well be argued that, actually if not theoretically, 
the power of restriction is in the hands of the legislature. 

Similarly when, under the Pennsylvania theory, the people 
adopt the convention act by merely proceeding under it to the 
election of delegates. The Pennsylvania court points out that, 
even in such a case, it is the people and not the legislators who 
restrict the convention. 

The people have the same right to limit the powers of their dele- 
gates that they have to bound the power of their representatives. 
Each are representatives, but only in a different sphere. It is sim- 
ply evasive to affirm that the legislature cannot limit the right 

* Opinion of Justices (1833), 6 Cush. 573, 574-575. 

2 State V. Am. Sugar Co. (1915), 137 La. 407, 415. 

3 XXIX "Harv. Law Rev.," 530, n. 



124 CONSTITUTIONAL CONVENTIONS 

of the people to alter or reform their government. Certainly it 
cannot. The question is not upon the power of the legislature to 
restrain the people, but upon the right of the people, by the in- 
strumentality of the law, to limit their delegates. . . . 

Law is the highest form of a people's will in a state of peaceful 
government. When a people act through a law the act is theirs, and 
the fact that they used the legislature as their instrument to confer 
tlieir powers makes them the superiors and not the legislature.^ 

And the South Carolina Court agrees, in the following lan- 
guage: 

It is true, the legislature can not limit the convention; but if 
the people elect them for the purpose of doing a specific act or 
duty pointed out by the act of the legislature, the act would 
define their powers. For the people elect in reference to that and 
nothing else.^ 

Yet this court points out the valuelessness of this power. 

If, by their agents, (two thirds of th© members of both branches 
of the Legislature) the people are not allowed to impose restric- 
tions on their convention, they cannot do so at all. It will, most 
evidently, be practically impossible for them to do so by their 
votes at elections.^ 

Nevertheless, for the purpose of preventing subsequent legis- 
lative tampering with a convention act adopted by the voters, 
or under which they have acted, it is well worth while to bear 
in mind the distinction that the people can, and the legislature 
cannot, restrict a convention. 

Actual instances of successful restriction of the convention 
by the people are as follows. We have already seen that most 
of the instances of apparent legislative restriction, cited in the 
preceding chapter, are really cases of popular restriction. Such, 
for example, were the restrictions placed on the Louisiana con- 
vention of 1898 and the North Carolina convention of 1835, 
and recognized as binding by those conventions. The Louisiana 
Supreme Court in recognizing the binding force of these restric- 
tions, expressly laid it to the popular vote.^ 

1 Wood's Appeal (1874), 75 Pa. 59, 71-72. 

2 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 222. 

3 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 273. 

4 La. Ry. v. Madere (1909), 124 La. 635, 641. 



POPULAK CONTKOL 125 

As already suggested, instances in which conventions have 
overridden popular restrictions may be explained on the theory 
that the convention supposed them to be merely legislative 
restrictions; for the doctrine of convention sovereignty, to be 
discussed in the next chapter, never went so far as to deny the 
supremacy of the people over their agents, the convention. 
Although conventions have assumed that the people have dele- 
gated to them enormous and extraordinary implied powers, 
no convention has ever presumed to assert squarely that the 
people might not have expressly withheld any of these powers. 

May the people amend the convention act? If the legislature 
submits the amendment to the people, the legislature becomes 
a party to the amendment and hence assents to the popular 
action. Thus, if the original act was the product of the legis- 
lature alone, the legislature assents to delegating to the people 
the right to amend it, even if we were to assume that the people 
would not have this right inherently, apart from the legislative 
assent. 

If the legislature withholds this assent, the people may amend 
the act by popular initiative in such States as possess that 
method of legislation; for even if the convention act is the 
creature of the legislature alone, it is subject to amendment 
by the initiative in the same manner as any other legislative act. 

If the original act was the act of the people, they certainly 
have the right to change or recall their original action. All 
that ever stands in the way of change or recall of legislative 
action by the body which enacted it is the accrual of vested 
rights under the original enactment, and it is impossible to 
conceive that anyone, except the people as a whole, could 
acquire a vested right in a movement to initiate a change of 
government. 

The power to amend, of course, carries with it the power to 
repeal; hence the people may at any time abolish a constitu- 
tional convention which they have called into being. Of course, 
a simpler way to nullify the whole action of the convention, 
would be by refusing to ratify the constitution when the con- 
vention submits it. This is practically a universal right, for 
constitutions are now practically universally submitted for 
popular approval. 

There is one more way in which the electorate can control the 



126 CONSTITUTIONAL CONVENTIONS 

convention, and that Is by the means of Instructions to the 
delegates. The existence of this right depends on what funda- 
mental theory of government we assume. There are two 
contending theories. One, which has already been stated in the 
chapter on fundamental principles,^ and which has the support 
of express authority in many of our Bills of Rights, is to the 
effect that the people are supreme and would directly govern 
themselves If it were convenient and expedient. Direct govern- 
ment not being convenient and expedient, the people send to 
their various legislative bodies representatives, whose duty it 
is to represent and give effect to the point of view of their 
constituents. 

The opposing, un-American theory is that the people are 
unfit to rule; that, at most, they are just barely able to elect 
a few supermen to govern them; and that these supermen, to 
whom are delegated the powers of government, owe no duty to 
consult the wishes of their incompetent constituents. 

In other words, either we live under a representative form 
of government, or we live under an elective aristocracy. 

It is strange that Jameson, after laying down in an early 
part of his book the principle that representatives must be 
so selected as to make it reasonably certain that the will of the 
people will be executed,^ should in a later part of his book scorn- 
fully deny the right of the people to instruct their delegates.^ 

The binding force of instructions is a question of morals 
rather than of law. On many occasions members of conventions 
have had such a high moral sense that, when they found their 
instructions conflicting with their consciences, they have re- 
signed from the convention rather than violate either. Such 
was the case of Mr. Vance In the Ohio convention of 1850, as 
related by Jameson,^ and of Messrs. Worthlngton, Carroll, and 
Chase in the Maryland convention of 1776, as related by Dodd.^ 

Instructions may be either formal or informal. Of course, 
formal instructions are preferable, for they give the delegate 
an official expression of the opinion of his constituents. But 
as we have already seen, the people cannot speak officially save 
through their electors at a regularly constituted election, and 
such an election requires legislative assistance; so In States 

^ See pp. 11-12, supra. ^ Jameson, p. 1. ^ Jameson, pp. 353-354. 
4 Jameson, p. 353. ^ Dodd, p. 12. 



POPULAR CONTROL 127 

which do not already have some machinery for obtaining a 
popular expression of opinion/ the legislature can by mere 
inaction effectively prevent the official instruction of delegates, 
if the legislature fears that the expressed sentiments of the people 
will turn out to be contrary to the sentiments which the legis- 
lature would desire the convention to hold. 

Informal instruction may be had by means of mass meetings, 
petitions, etc.; but, as we have already seen, the question of 
instructions to delegates is largely a moral one. A delegate who 
desires to represent his constituents can find many ways of 
sounding them on their views; perhaps the simplest way being 
to declare his own platform in advance of his election, and let 
the people elect or reject him on that basis, " to the end that it 
may be a government of laws and not of men." ^ 

1 For example, Mass. St. 1913, c. 819. 

2 Mass. Decl. of Rts., Art. XXX. 



Chapter XI 
EXTRAORDINARY POWERS CLAIMED 

Many conventions have claimed the right to exercise powers 
far beyond the mere framing of constitutions or constitutional 
amendments. It was to combat these claims of convention 
sovereignty that Jameson wrote his book in 1867 and that 
Braxton published his Virginia Law Register article in 1901.^ 

Jameson met the claim of convention sovereignty with the 
equally untenable claim of legislative sovereignty. Braxton 
met it with the much more tenable theory that the convention, 
like any other governmental body, possessed only such powers 
as were expressly or impliedly delegated to it; but even he was 
guided by a zeal much like Jameson's ^ and admits that he has 
proceeded on theory rather than on law and precedent.^ 

The conventions of the Revolutionary War were governed by 
no law but the law of extreme necessity. In order to maintain 
order and carry the war to a successful completion, it was 
necessary that they should exercise governmental power as 
well as merely frame constitutions. A conflict between legis- 
lature and convention would have been most unfortunate and 
disastrous. Thus in some States the legislatures framed the 
constitutions, and in others the conventions did the legislating, 
so that it is hard to classify these bodies as either conventions 
or legislatures.'^ We have seen that the independent constitu- 
tional convention originated only in those States and at such 
times as were free from military invasion and danger from an 
aggressive Tory element. 

The Pennsylvania Supreme Court says, with respect to the 
doctrine of convention sovereignty, 

Such a doctrine, however suited to revolutionary times, when 
new governments must be formed, as best the people can, is wholly 

1 VII "Va. Law Reg.," 79. ^ j)^^^^ p. yj, 

3 VII " Va. Law Reg./' 79, 97, n. 2. « See p. 3, supra. 



EXTKAOEDINARY POWERS CLAIMED 129 

unfitted when applied to a state of peace and to an existing govern- 
ment, instituted by the people themselves and guarded by a well 
matured bill of rights.^ 

See also the following: 

The authorities generally except ordinances, and even Con- 
stitutions, enacted in time of war, or upon the heels thereof, from 
the more rigid rule as appUcable to those adopted in time of peace 
and tranquility .2 

No argument for the implied power of absolute sovereignty 
in a convention can be drawn from revolutionary times, when 
necessity begets a new government. Governments thus accepted 
and ratified by silent submission afford no precedents for the power 
of a convention in a time of profound tranquility, and for a people 
Hving under self-estabhshed, safe institutions.^ 

When the first American conventions were held, the authority 
of England had been thrown off and no definite form of government 
established in its place. Under such circumstances, those Con- 
ventions were doubtless justified in assuming and exercising the 
most absolute sovereignty, not only in providing a new Constitution 
and political system, but in exercising, themselves, dictatorial 
powers, until they were ready to launch their new governments. 
But how can a convention, elected and assembled according to law, 
with all the functions of existing government in full operation, 
excuse the attempt to assume the unlimited powers of a Revolution- 
ary convention? ^ 

Neither are the secession and reconstruction conventions of 
the Civil War period very valuable as precedents, owing to the 
extreme emergency of the situation. Dodd says: 

It is doubtful whether the Missouri and secession conventions 
may properly be called constitutional conventions in the sense in 
which that term is used here; they were called to consider the 
relations of their states to the federal government, and their actions 
in changing constitutions were but incidental to their primary 
object, which was not the framing or revision of constitutions.^ 

The conventions held in the southern states in 1865-66, under 
proclamation of President Johnson, and those held in 1867-68, 

1 Wood's Appeal (1874), 75 Pa. 59, 70. 

2 Ex parte Birmingham Ry. (1905), 145 Ala. 514, 532. 

3 Ellingham v. Dye (1912), 178 Ind. 336, 379. 
* Braxton, VII "Va. Law Reg.," 79, 83. 

5 Dodd, p. 105, n. 55. 



130 CONSTITUTIONAL CONVENTIONS 

under congressional reconstruction acts, were vested with powers 
greater than ordinary constitutional conventions in states with 
organized governments, inasmuch as they were authorized not 
only to frame constitutions but also to take steps necessary for the 
erection of state governments.^ 

Attention should also be called to the fact that conventions 
called in territories under congressional enabling acts ordinarily 
possess wider powers than conventions called in organized states, 
inasmuch as they have not only to frame a constitution but also 
to provide for the organization of state governments.^ 

The Cyclopedia of American Government sums this up as 
follows: 

Actually, conventions assembled during the early revolutionary 
period, and in Missouri and the southern states during the Civil 
War, exercised wider powers than those just referred to as proper 
powers of constitutional conventions. But it has already been 
suggested that the conventions of the early revolutionary period 
were primarily provisional governments and only incidentally 
constitutional conventions. In Missouri, from 1861 to 1863, and 
in the southern states during the same period conditions were 
exceptional and to a certain extent justified conventions in 
acting outside of what was their more proper field. The recon- 
struction conventions in the southern states, in 1865-66, and 
1867-68, although called not only to frame constitutions but 
also to reestablish state governments, did, actually, in a num- 
ber of cases, go outside of their proper sphere and act as if 
they were bodies possessing all the capacities of the regular 
legislatures.^ 

Yet even reconstruction conventions have been held to be 
subject to the same inherent restrictions as ordinary conven- 
tions. This is true of the attitude of the Florida Supreme Court 
toward the convention of 1865 in that State. The court held 
invalid a clause in the constitution adopted by that conven- 
tion because it thought the clause not within the convention's 
powers. The convention had been called "for the purpose of 
altering or amending the constitution . . . and with authority 
to exercise within the limits of said state all the powers necessary 
and proper to enable such loyal people of the state of Florida 

1 Dodd, pp. 106-107. 2 j)odd, p. 107. 

3 I "Cyc. American Government," 430-431. 



EXTRAORDINARY POWERS CLAIMED 131 

to restore said state to its constitutional relations to the federal 
government." ^ The court said : 

The functions of the convention were confined to the objects for 
which it was elected, the presentation of an amended constitution, 
having reference to the declaration of certain general principles and 
rules of government, and providing for the organization thereof by 
the election of the necessary officers.^ 

Thus, if one of these conventions is to be cited as a precedent 
in opposition to convention sovereignty, the rest of them might 
just as well be cited in support of this doctrine; the objection 
being merely to the weight, rather than to the admissibility of 
the evidence. 

The doctrine of convention sovereignty has been often pro- 
pounded, particularly by members of conventions. The fol- 
lowing statements of this doctrine may prove instructive: 

In the New York convention of 1821 a Mr. Livingstone (it 
does not appear whether Peter R. or Alexander) said: 

We have been told by the honorable gentleman from Albany 
(Mr. Van Veehten) that we were not sent here to deprive any por- 
tion of the community of their vested rights. Sir, the people are 
here themselves. They are present by their delegates. No re- 
striction limits our proceedings. What are these vested rights? 
Sir, we are standing upon the foundations of society. The ele- 
ments of government are scattered around us. All rights are 
buried; and from the shoots that spring from their grave we are 
to weave a bower that shall overshadow and protect our Uberties.^ 

The Hon. George M. Dallas, in a letter pubHshed in "The 
Pennsylvanian" of September 5, 1836, said: 

A Convention is the provided machinery of peaceful revolution. 
It is the civilized substitute for intestine war. . . . When ours 
shall assemble, it will possess, within the territory of Pennsylvania, 
every attribute of absolute sovereignty, except such as may have 
been yielded and are embodied in the Constitution of the United 
States. What may it not do? It may reorganize our entire system 
of social existence, terminating and proscribing what is deemed 
injurious, and estabUshing what is preferred. It might restore the 
institution of slavery among us; it might make our penal code as 

1 Bodd, p. 107, n. 59. 

2 Bradford v. Shine (1871), 13 Fla. 393, 412-413. 
* Jameson, p. 303. 



132 CONSTITUTIONAL CONVENTIONS 

bloody as that of Draco; it might withdraw the charters of the 
cities; it might supersede a standing judiciary by a scheme of oc- 
casional arbitration and umpirage; it might prohibit particular 
professions or trades; it might permanently suspend the privilege 
of the writ of habeas corpics, and take from us . . . the trial by jury. 
These are fearful matters, of which intelligent and virtuous freemen 
can never be guilty, and I mention them merely as illustrations of 
the inherent and almost boundless power of a Convention.^ 

So, in the Illinois convention of 1847, Onslow Peters said: 

He had and would continue to vote against any and every propo- 
sition which would recognize any restriction of the powers of this 
Convention. We are . . . the sovereignty of the State. We are what 
the people of the State would be, if they were congregated here in 
one mass meeting. We are what Louis XIV said he was, ' We are 
the State.' We can trample the Constitution under our feet as 
waste paper, and no one can call us to account save the people.^ 

The Committee on Printing of the Illinois convention of 1862 
said, in one of their reports: 

When the people, therefore, have elected delegates, . . . and they 
have assembled and organized, then a peaceable revolution of the 
State government, so far as the same may be effected by amendments 
of the Constitution, has been entered upon, limited only by the 
Federal Constitution. All power incident to the great object of the 
Convention belongs to it. It is a virtual assemblage of the people 
of the State, sovereign within its boundaries, as to all matters con- 
nected with the happiness, prosperity and freedom of the citizens, 
and supreme in the exercise of all power necessary to the estab- 
lishment of a free constitutional government, except as restrained 
by the Constitution of the United States.^ 

In a speech in the same body. General Singleton said: 

Sir, that this Convention of the people is sovereign, possessed 
of sovereign power, is as true as any proposition can be. If the 
State is sovereign the Convention is sovereign. If this Convention 
here does not represent the power of the people, where can you 
find its representative? If sovereign power does not reside in this 
body, there is no such thing as sovereignty.^ 

The Pennsylvania convention of 1873 replied to the decision 
of the Supreme Court in Wells v. Bain, which appeared to the 

^ Jameson, pp. 303-304. ^ Jameson, p. 304. 

^ Jameson, p. 304. * Jameson, p. 304. 



EXTRAOEDINARY POWERS CLAIMED 133 

convention to be an assertion of legislative supremacy, by 
passing a resolution in which they declared that the conven- 
tion, subject to the Constitution of the United States, is answer- 
able only to the people from whom it derives its power.^ 

It may be because of this resolution that the Supreme Court 
of Pennsylvania in the later case of Wood's Appeal shifted its 
ground from an assertion of legislative supremacy to an asser- 
tion of popular supremacy.^ 

Benjamin F. Butler asserted in the Massachusetts convention 
of 1853: 

We are told that we assume the power, and that we are merely 
the agents and attorneys, of the people. Sir, we are the delegates 
of the people, chosen to act in their stead. We have the same 
power and the same right, within the scope of the business assigned 
to us, that they would have, were they all convened in this hall.^ 

Dodd points out that the doctrine of convention sovereignty 
has attained the dignity of being embodied in dicta by the 
highest courts of several States.^ Thus the Supreme Court of 
Texas has said: 

So in case of a peaceful change of government by the people as- 
sembled in convention for the purpose of forming a constitution. 
... It would be in the power of such convention to take away or 
destroy individual rights, but such an intention would never be 
presumed.^ 

So also the Supreme Court of Mississippi: 

We have spoken of the constitutional convention as a sovereign 
body, and that characterization perfectly defines the correct view, 
in our opinion, of the real nature of that august assembly. It is 
the highest legislative body known to freemen in a representative 
government. It is supreme in its sphere. It wields the powers of 
sovereignty, specially delegated to it for the purpose and occasion 
by the whole electoral body, for the good of the whole common- 
wealth. The sole limitation upon its power is, that no change in 
the form of government shall be done or attempted. The spirit of 

^ Jameson, p. 410. 

^ See pp. 109-1 lOj supra. 

3 Deb. Mass. Conv. 1853, Vol. I, p. 78. And cf. Deb. Ky. Conv. 1849, 
p. 863; Deb. Ala. Conv. 1861, p. 114; Deb. Va. Conv. 1901, Vol. I, pp. 63, 
77, 83; Vol. II, p. 3132; Amasa M. Eaton in XIII "Harv. Law Rev.," 284. 

4 Dodd, p. 78, n. 10. 

6 McMullen v. Hodge (1849), 5 Tex. 34, 73. 



134 CONSTITUTIONAL CONVENTIONS 

republicanism must breathe through every part of the frame-work, 
but the particular fashioning of the parts of this frame-work is 
confined to the wisdom, the faithfulness and the patriotism of the 
great convocation representing the people in their sovereignty.^ 

And the Supreme Court of Michigan: 

The convention is an independent and sovereign body.^ 

Jameson sums up the history of this doctrine as follows: 

The records of our conventions reveal no trace of it earlier than 
the New York convention of 1821, from which an extract has 
been given. In 1829 it again made its appearance in the Virginia 
convention but obscurely and hesitatingly. . . . The next appear- 
ance was in the letter of Mr. Dallas, from which an extract has 
been given above, and in the convention held in Pennsylvania in 
the following year, — the latter the fruit of the seed sown by that 
gentleman. . . . Ten years afterwards, this theory was enun- 
ciated, in the terms we have seen above, by Mr. Peters, in the 
Illinois Convention of 1847. In 1849, it made its appearance in the 
Kentucky Convention, and four years later, in that of Massachu- 
setts, under the patronage of Messrs. Hallett and Butler. In 1860- 
1861, it produced its legitimate fruits in the so-called secession of 
the eleven slaveholding States from the Union, a movement ma- 
tured and consummated by its aid; and finally, in 1862, its echo 
was heard in the free State of Illinois, some members of whose 
Convention unwisely seized upon a time of national peril to en- 
dorse a disorganizing dogma, in the general adoption of which at 
the South that peril had originated.^ 

Jameson also lays the spontaneous conventions of Maryland 
in 1837, and Rhode Island in 1841 to this dogma, as he calls it.^ 
It is probable, however, that he is unduly exercised. Dodd says 
in this connection: 

Judge Jameson's work may be said to have been written to dis- 
prove the theory that a convention has sovereign power, and under 
these conditions the theory assumed in his mind a much more 
important position than it ever attained in fact. The theory of 
conventional sovereignty was advanced by speakers before sev- 
eral conventions, beginning with that of New York in 1821, but no 

1 Sproule V. Fredericks (1892), 69 Miss. 898, 904. 

2 Carton v. Secy, of State (1908), 151 Mich. 337, 340-341. 

3 Jameson, pp. 307-308. 
* Jameson, p. 309. 



EXTRAORDINARY POWERS CLAIMED 135 

convention seems ever to have attempted to act upon the theory 
or even to have endorsed it. The report made to the IlHnois con- 
vention of 1862 and the resolutions adopted by the Pennsylvania 
convention of 1873 went little if any further than to assert the 
convention's independence of the legislative and other organs of 
the existing state government.^ 

The full quotation from Gen. Butler, even as given by Jame- 
son shows that Butler was not advocating convention sover- 
eignty, for Butler said, " In my judgment, we have every inci- 
dental power necessary to do the business of the people." ^ 
Incidental and emergency powers, and independence of the leg- 
islature are all that has ever been seriously claimed in the line 
of convention sovereignty; but Braxton and Jameson construct 
men of straw out of the oratorical utterances of convention 
members, and then proceed valiantly to knock these straw-men 
down. 

Nevertheless, lest some one might seriously raise the claim of 
convention sovereignty, beyond mere incidental powers and 
freedom from legislative control, it may be well to select the 
following line of argument in opposition: 

We are told they were elected by the people. This, however, is 
not enough. For what purpose were they elected by the people? 
To represent their sovereignty. But was it to represent their 
sovereignty to every purpose, or was it for some specific purpose? 
To this no other answer can be given than the act of the legislature 
under which the convention was assembled. Certainly, the people 
may, if they will, elect delegates for a particular purpose, without 
conferring on them all their authority. To deny this, would be to 
detract from the power of the people, and to impose on them a 
most inconvenient and dangerous disability.^ 

No doubt there might be a convention unlimited in its powers, 
and representing all the authority of the people. But when they 
are about to confer this high authority, certainly they ought to be 
aware that they are doing so.^ 

If, by a mere determination of the people to call a convention, 
whether it be by a vote or otherwise, the entire sovereignty of the 
people passes ipso facto into a body of deputies or attorneys, so 

1 Dodd, pp. 77-78, n. 10. 

2 Deb. Mass. Conv. 1853, Vol. I, p. 78; Jameson, p. 334. 

3 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270-271. 
« McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 271-272. 



136 CONSTITUTIONAL CONVENTIONS 

that these deputies can without ratification, alter a government 
and aboHsh its bill of rights at pleasure, and impose at will a new 
government upon the people without restraint upon the governing 
power, no true liberty remains. Then the servants sit above their 
masters by the merest imputation, and a people's welfare must 
always rest upon the transient circumstances of the hour, which 
produce the convention and the accidental character of the ma- 
jority which controls it.^ 

The present inquiry is not how much power may be conferred 
by law, but what power was conferred on this convention?^ 

In the appointment of delegates to that convention, the people 
acted upon the faith that they were to be charged with those 
duties and no others, and the assumption of any other powers than 
those necessary to the attainment of the objects in view, would 
have been a violation of the trust reposed in them, and an usurpa- 
tion of the rights of the people.^ 

It will not do to assert that the whole original power of the 
people was conferred by the election. . . . The law was the war- 
rant of their election, and expressed the very terms chosen and 
adopted by the people, under which they delegated their power to 
these agents. The delegates possess no inherent power, and when 
convened by the law at the time and place fixed in it, sit and act 
under it, as their letter of attorney from the people themselves, and 
can know and discover the will of the people only so far as they can 
discern it through this the only warrant they have ever received 
to act for the people. If they claim through any other source, they 
must be able to point to it.'* 

Can it be supposed that the good people of this State thought 
that in the appointment of delegates to that convention, they were 
conferring on them the authority to transfer their allegiance to the 
grand Turk, or the Emperor of Russia, or to indulge in any other 
caprice they might think proper? ^ 

Did the people by this act, without an expressed intent, and by 
mere inference, intend to abdicate all their own power, their rights, 
their interests, and their duty to each other in favor of a body of 
mere agents, and to confer upon them, by a blank warrant, the 
absolute power to dictate their institutions, and to determine 

1 Wood's Appeal (1874), 75 Pa. 59, 70. 

2 Wells V. Bain (1872), 75 Pa. 39, 50. 

3 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242. 
« Wells V. Bain (1872), 75 Pa. 39, 48. 

6 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242. 



, EXTRAOEDINARY POWERS CLAIMED 137 

finally upon all their most cherished interests? If the argument 
be admitted for an instant that because nothing was said in tliis law 
on the subject of delegation, therefore, greater powers were con- 
ferred than were granted in the subsequent Act of 1872, then all 
power belonging to the people passed, and they did grant by it the 
enormous power stated. Then, by a covert intent, hidden in the 
folds of this act, the people delegated power to repeal all laws, 
abolish all institutions, and drive from place the legislature, the 
governor, the judges, and every officer of the Commonwealth, 
without submitting the work of the delegates to the ratification of 
the people.^ 

In considering this question of delegated power some are apt to 
forget that the people are already under a constitution and an exist- 
ing frame of government instituted by themselves, which stand as 
barriers to the exercise of the original powers of the people, unless 
in an authorized form.^ 

The regular Government continues in full force, de jure as well 
as de facto, uninterrupted and unaffected, even in theory, by the 
existing Constitutional Convention, until a new Constitution is 
actually and legally adopted. 

A Constitutional Convention is not the People, with sovereign 
and unlimited powers, but a mere Committee of the People, 
with only such limited powers as the People may expressly bestow 
upon them, the granting of which powers will be strictly construed 
against the Convention.^ 

Three and a half or four millions of people cannot assemble 
themselves together in their primary capacity — they can act 
only through constituted agencies. No one is entitled to represent 
them unless he can show their warrant — how and when he was 
constituted their agent.^ 

Upon the common-place principle that the authority of the 
agent is limited by the powers conferred on him by the principal, 
the powers of the delegates were limited to the objects designated 
by the act under which the convention was called.^ 

Beyond a general purpose of revising the constitution, the au- 
thority of the delegates is not set forth. They are not endowed with 

1 Wells V. Bain (1872), 75 Pa. 39, 50-51. 

2 Wells V. Bain (1872), 75 Pa. 39, 53. 

3 Braxton, VII " Va. Law Reg.," 79, 96. 
* Wells V. Bain (1872), 75 Pa. 39, 53. 

5 McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242. 



138 CONSTITUTIONAL CONVENTIONS 

the entire sovereignty of the state. Their agency, hke every branch 
of the pubhc service, is marked on all sides by fixed bounds.^ 

Let us examine in detail the few instances in which conven- 
tions have assumed to interfere with the other branches of the 
government. This (interference is, of course, illegal if we hold 
to the theory that the convention is a fourth branch of the gov- 
ernment, and that the four branches of government are shut 
up in separate compartments,^ 

First let us consider attempts by conventions to interfere with 
the executive department. Jameson says: 

That body cannot remove from office, or instruct those holding 
office, by any direct proceeding, as by resolution or vote applying 
to particular cases. It is its business to frame a written Constitu- 
tion; at most, to enact one. It has no power, under such a commis- 
sion, to discharge the public servants, except so far as their dis- 
charge might result from the performance of its acknowledged duty.^ 

Jameson divides convention interference with the executive 
into three questions as follows: 

1. Can a Convention appoint officers to fill vacancies in the 
various governmental departments? 

2. Can it eject from office persons holding positions in the 
government by regular election or appointment? 

3. Can it direct such officers in the discharge of their duties? * 

The Missouri convention of 1865, called by the legislature, but 
elected by the people, prepared various amendments which were 
submitted to the people and adopted; and in addition it adopted 
and put into operation, without submission to the people, an 
ordinance abolishing slavery in the State, and an ordinance 
vacating certain judicial and executive offices and authorizing 
the Governor to fill the vacancies. The convention had only 
been authorized to amend the constitution.^ It is clear that the 
convention itself did not regard these acts as an amendment of 
the constitution, for it submitted all the true amendments to the 
people. 

The convention of 1861 in the same State had removed 

1 Opinion of Justices (1889), 76 N. H. 612, 617. 

^ See pp. 89-91, supra. 

^ Jameson, p. 321. ^ Jameson, p. 320. ^ Jameson, pp. 322-324. 



EXTRAORDINARY POWERS CLAIMED 139 

various executive and legislative officers and had repealed cer- 
tain acts of the legislature. It also had passed considerable 
legislation for the government of the State.^ 
Jameson comments as follows: 

All these acts were clearly usurpations of authority properly be- 
longing to other departments of the State government. That 
that government was in treasonable hands might justify the Con- 
vention, on moral grounds, in seizing, by revolutionary force, 
powers not its own, but could not alter the legal character of its 
acts. In 1865, the same necessity perhaps existed, and, if so, 
mighty justify acts clearly of the same general character, legally 
considered, as those of its predecessor of 1861. But, as I have said, 
upon this question I pass no opinion. If the acts characterized 
as revolutionary were strictly necessary, it was not the first time in 
history that a party, having morally and politically the better 
case, had legally the worst of the argument.^ 

These Missouri cases are the only examples of attempted 
usurpation of executive powers cited by Jameson, up to 1887. 
No further examples are cited by Braxton up to 1901, or by 
Dodd up to 1910, and the author knows of none since then. 
Like the conventions of the Revolutionary War, these conven- 
tions possessed the justification of extreme necessity and hence 
are really not precedents. 

The conflicts with the judiciary, except as aforesaid, have all 
been cases of interference hy, rather than interference with, 
the courts. 

Jameson introduces the subject of interference with the legis- 
lature by the following summing up of what has gone before. 

With the Executive and Judiciary of a State, a Convention has, 
in the ordinary and normal operation of its government, no direct 
relations. Neither of these departments has any thing to do with 
calling it together, except in perhaps rare cases, in which some 
specific and extraordinary duty has been prescribed to it by the 
legislature; and neither of them, while a Convention is in session, 
has any occasion to come in contact with it. The only cases in 
which either of those departments could be brought into direct 
relations with that body, would be where the latter should at- 
tempt to direct it in the discharge of its constitutional duties, — 
a case which has already been considered, — or in which one of the 

^ Jameson, p. 325. ^ Jameson, p. 325. 



140 CONSTITUTIONAL CONVENTIONS 

former should attempt to revolve outside its proper orbit, and thus 
bring about collisions with the latter. Inasmuch, however, as 
neither of the three could with any show of right do any act which 
should result in such a collision, except when acting in assumed 
conformity to some law, giving to usurpation an apparent legal- 
ity, no questions could arise between them as to their respective 
powers, which would not resolve themselves into questions as 
to the relative powers of Conventions and legislatures, the only 
law-making bodies, save the electors, which have been already con- 
sidered, known to our Constitutions. I shall therefore spend no 
time in considering the relations of those two departments to 
Conventions, but pass to those which the latter bear to legislatures, 
and the powers resulting therefrom, which belong to each of those 
bodies.^ 

Dodd's collection of examples of legislation by conventions ^ 
is rather misleading, as he frequently refers to ordinances which 
are clearly within the constitutional powers of the convention, 
as being ordinances of a legislative character. It is necessary 
to analyze each of the bits of alleged legislation passed by con- 
ventions, in order to determine whether it be of a strict legis- 
lative nature, or merely incidental to the proper duties of the 
convention. 

Instances of pure legislation have been as follows. The South 
Carolina convention of 1895 established a new county, paid 
interest on the public debt, put the counties on a cash basis, 
and passed three statutes validating the subscriptions for stock 
in several railroads.^ In fact, this convention got so carried 
away with the idea of legislating, that one of the members 
moved "that there shall be no session of the legislature this 
year, but the convention shall do its work in its place." ^ 
. The Mississippi convention of 1890 enacted a general election 
law, established a commission to collect information for the 
next legislature on a certain subject, created the office of land 
commissioner, validated the titles to certain land which had 
been homesteaded, issued bonds to construct levees, and ex- 
empted factories from taxation.^ 

^ Jameson, pp. 355-356. 

2 Dodd, p. 108. 

3 Thorpe, Vol. VI, pp. 3345-3354. 

4 Amasa M. Eaton in XXXI "Am. Law Rev.," 198, 210. 
B IV Thorpe, 2129-2137. 



EXTEAORDINARY POWERS CLAIMED 141 

The Louisiana convention of 1898 authorized the mobihza- 
tion of state troops.^ 

We have ah-eady referred to the action of the Missouri con- 
vention of 1865 in removing certain of the State officers and 
providing for the filHng of vacancies. This convention also 
adopted and put into operation, without submission to the 
people, an ordinance abolishing slavery in Missouri.^ 

The Supreme Court of Alabama sustained the power of the 
convention of 1865 to act as a provisional legislature.^ This 
Supreme Court at first took the same view with reference to 
the convention of 1867-1868, but later held that this conven- 
tion did not have legislative power.^ 

The South Carolina convention of 1868 annulled certam 
earlier legislative acts under which contract rights had been 
acquired.^ The Supreme Court of South Carolina declared this 
ordinance void as imparing the obligation of contracts, but de- 
livered the following dictum: 

It is not easy to define the powers which a convention of 
people may rightfully exercise. It has been doubted whether 
any act of mere legislation in a state having a constitution can 
be passed by a convention called for a particular and different 
purpose. The body is not constituted with two houses, and in 
other respects lacks the organization necessary for ordinary legis- 
lation. The convention of 1868 was not called for a purpose 
fairly embracing the subject of this ordinance, which was never 
submitted to the people.^ 

The Alabama convention of 1901 provided by ordinance that 
a term of court should be held at Pell City.^ The Supreme Court 
held this ordinance void because not submitted to the people.^ 

The territorial convention of Oklahoma provided in its 
constitution for dividing Woods County into three counties. 
It also passed an ordinance to carry this provision into effect 
and tried to enforce the ordinance before the adoption of the 

1 Thorpe, Vol. Ill, p. 1596. 

2 Jameson, p. 322. 

3 Cases cited in Dodd, p. 110, n. 66. 

4 Plowman v. Thornton (1875), 52 Ala. 559, 569. 
B Dodd, p. 112. 

e Gihbes v. Railroad (1879), 13 S. C. 228, 242. 

» Dodd, pp. 113-114. 

8 Ex parte Birmingham Ry. (1905), 145 Ala. 514, 519. 



142 CONSTITUTIONAL CONVENTIONS 

constitution by the people.^ The Supreme Court of the terri- 
tory held: 

The convention has no power to enact laws; it possesses no 
legislative powers except such as may be necessary to exercise in 
prescribing by ordinance the methods and procedure for obtain- 
ing the expression of the electors upon the ratification of the pro- 
posed constitution, and for the election of the officers provided 
for in the constitution.^ 

But the court found that this particular ordinance was within 
the implied powers of the convention. 
Compare : 

The passage of an ordinance, then, to raise revenue was an 
assumption of power by the convention, that was never ratified 
by the people of the state.^ 

Some conventions seek to validate their purely legislative 
ordinances by including in the constitution which they prepare, 
a provision to the effect that all ordinances passed by the con- 
vention shall have the same force as though included in the 
constitution. This was the case in the South Carolina conven- 
tion of 1895, which passed a large number of purely legislative 
ordinances, as well as several ordinances relating to the duties 
of the convention,^ 

The Mississippi constitution of 1890 declared void all laws 
repugnant to the ordinances of the convention, thus giving these 
ordinances validity.^ 

The Louisiana constitution of 1898 expressly ratified the or- 
dinances providing for loans for the mobilization of troops and 
for the expenses of the convention.® 

Of course, a simple procedure for a convention which wishes 
to legislate would be actually to include the legislation in the 
constitution. That has frequently been done with unquestioned 
success; in fact many of our State constitutions to-day consist 
for the most part of legislative details which ought to have been 
left to the ordinary legislature. 

1 Dodd, pp. 114^115. 

2 Franz v. Autry (1907), 18 Okla. 561, 631. 

3 Bragg v. Tuffts (1887), 49 Ark. 554, 561. 

4 Art. XVII, § 11. 

B § 275. 6 Art. 326. 



EXTRAORDINARY POWERS CLAIMED 143 

For example: 

The constitution of Oklahoma contains eleven pages of legisla- 
tion relating to the subject of corporations alone, besides much 
more ordinary legislative matter relating to homesteads and ex- 
emptions, banks and banking, insurance, the employment of chil- 
dren, and education. It forbids plural marriages, fixes the maxi- 
mum rate of interest, abolishes the so-called fellow-servant doctrine 
and regulates the use of the contributory-negligence and assump- 
tion-of-risk doctrines as defenses in certain suits for damages, 
establishes the eight-hour day on public works and in coal mines, 
and determines the test for the purity of kerosene oil. The con- 
vention also provided for the separate submission to the electorate 
of a proposal to prohibit the sale of intoxicating liquors. The acts 
of the Oklahoma convention of 1907 are merely the most striking 
evidence of the growing tendency throughout the states, especially 
in the South and West, to transform the constitutional convention 
into an ordinary legislative body.^ 

Such provisions are so numerous that they need no mention. 
Dodd says: 

The constitutional convention is a legislative body, although 
with limited functions, and it is within the sole determination of 
the convention as to what provisions shall be inserted into a new 
constitution. A constitutional convention may not properly enact 
a law or ordinance abolishing the fellow-servant rule, but it may 
insert into the new constitution a provision accomplishing the 
same purpose. By the insertion into new constitutions of mat- 
ters really not fundamental in character constitutional conventions 
have come to exercise great powers of legislation.^ 

The Supreme Court of Texas said with regard to an ordinance 
of the territorial convention of 1868 : 

It is true that the question of the propriety of incorporating 
any specific provision into the fundamental law was for the sole 
determination of the convention. But we are of opinion that 
when a convention is called to frame a constitution which is to 
be submitted to a popular vote for adoption, it cannot pass or- 
dinances and give them validity without submitting them to the 
people for ratification as a part of the constitution. . , . The 
ordinance of the convention in question, which divided the state 

^ Holcombe, State Government, p. 126. 

2 Dodd, p. 116. Cf. Schertz v. Bank (1892), 47 111. App. 124, 133. 



144 CONSTITUTIONAL CONVENTIONS 

into congressional districts, and that which provided for a sub- 
mission of the proposed constitution to a vote of the people, are 
appended to the constitution as framed and the whole are signed 
by the president and members as one instrument.^ 

But this subterfuge of including legislation in the constitu- 
tion has not always gone unchallenged. Thus the Supreme 
Court of Florida struck out of the constitution of 1865 a purely 
legislative provision, repealing the statute of limitations.^ That 
constitution, however, had been promulgated without being 
submitted to the people for ratification.^ 

Conventions which wish to legislate, however, do not always 
find it necessary to include or refer to their legislation in their 
constitution. Dodd says: 

Not only may a convention legislate by inserting provisions 
into a new constitution, but it may also do so by the submission 
to the people of separate clauses or ordinances to be voted upon 
either as a part of the constitution or separately from it — that 
is, it may exercise ordinance power if the ordinances are sub- 
mitted to the people with or at the same time as the proposed 
constitution.'^ 

Most of the court decisions which have declared the conven- 
tion ordinances to be invalid have proceeded, not on the ground 
that the convention had no power to frame these ordinances, 
but rather on the ground that they ought to have been submitted 
to the people for approval. See the following quotations: 

The ordinance now under consideration was not submitted to a 
vote, though two others, which were added, incorporated into and 
signed as a part of the constitution, were so submitted. Since 
the convention could not finally legislate, and since a vote of the 
people was necessary to make its action effective, we conclude that 
the ordinance in question was invahd, and not effective for any 
purpose.^ 

It is not easy to define the powers which a convention of the 
people may rightfully exercise. It has been doubted whether 
any act of mere legislation in a state having a constitution can be 

1 Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 376. 

2 Bradford v. Shine (1871), 13 Fla. 393, 411-415. 

3 TJiorpe, Vol. II, p. 685, n. a. 

4 Dodd, p. 116. 

6 Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 377. 



EXTRAORDINARY POWERS CLAIMED 145 

passed by a convention called for a particular and different pur- 
pose. The body is not constituted with two houses, and in other 
respects lacks the organization necessary for ordinary legisla- 
tion. The convention of 1868 was not called for a purpose fairly 
embracing the subject of this ordinance, which was never sub- 
mitted to the people.^ 

The ordinance in question pertains in no way to an amendment 
or revision of the constitution, and it was beyond the power of the 
convention to pass this ordinance, or it could not become binding 
or of legal force without having been submitted to and ratified by the 
people.^ 

It is contended that, if the adoption of the ordinance was 
beyond the authority of the convention, it is nevertheless valid and 
binding, because the constitution was submitted to and was rati- 
fied by the people. The authorities are almost uniform that the 
ratification of an unauthorized act by the people (and the people are 
the principal in this instance) renders the act valid and binding,^ 

The Supreme Court of Texas, however, has doubted the valid- 
ity of ordinances submitted to the people separately from the 
constitution/ but this case would seem to have gone on the 
question of separate submission of constitutional provisions, 
rather than on the question of the legislative power of the 
convention. 

But what is the status of such separate legislation in cases 
where the submission of the constitution to the people is not 
required, either by the existing constitution or by a convention 
act ratified and adopted by the people. In such cases it is quite 
probable that the convention may successfully promulgate or- 
dinances of a purely legislative character. The Supreme Court 
of Texas has said : 

The convention which passed the ordinance which was held 
valid in Grigsby v. Peak was called by virtue of the proclamation 
of President Johnson. This proclamation did not require any 
part of the work of the convention to be submitted to the .vote of 

1 Gibbes v. Railroad (1879), 13 S. C. 228, 242. 

2 Ex parte Birmingham Ry. (1905), 145 Ala. 514, 516. 

3 Ex parte Birmingham Ry. (1905), 145 Ala. 514, 528; and cf. same case, 
p. 530. 

* Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 376; quoted pp. 143-144, 
supra. 



146 CONSTITUTIONAL CONVENTIONS 

the people, and in our opinion therefore had the power to pass ordi- 
nances without submitting them for adoption to a popular vote.^ 

Dodd says: 

In states where conventions may promulgate their work without 
popular approval, although their invasion of the purely legislative 
field may be deprecated, there seems to be nothing to prevent such 
action except the self-restraint and conmion sense of the conven- 
tion itself. The s^-me forces which practically compel conventions 
to submit their work to the people, in most of the states where they 
are not required by constitutional provisions to do this, will also 
keep them pretty definitely within their proper sphere, even where 
the courts may decline to interfere.^ 

But, as has already been pointed out, most of the ordinances 
of so-called legislative character turn out on inspection to be 
properly incidental to the work of the convention. Among in- 
stances of incidental legislation have been the following. 

The Missouri convention of 1865 passed an ordinance pro- 
viding for the method of submitting the new constitution to 
the voters. The Supreme Court of that State, in a prosecu- 
tion for violating the oath required of each voter under that or- 
dinance, held that the enactment of the ordinance was within 
the necessary incidental powers of a convention, and a fortiori 
since this convention was not required to submit its work to the 
people. The court said : 

The convention might (if it had deemed proper to do so) have 
declared the constitution framed by it in full force and effect with- 
out making provision for its submission to the voters of the State. 

As the representatives of the people, clothed with an authority 
as ample as that, certainly its power to prescribe the means by 
which it was thought best to ascertain the sense of the qualified 
voters of the State upon that instrument cannot be seriously 
questioned.^ 

Whenever the convention act or the constitution omit to pre- 
scribe the detailed manner of submission or of the internal gov- 
ernment of the convention, the conventions themselves have 

1 Quinlan v. Homton Ry. Co. (1896), 89 Tex. 376, 377; Grigsby v. Peak 
(1882), 57 Tex. 142. 

2 Dodd, p. 117. 

3 State V. Neal (1868), 42 Mo. 119, 123. 



EXTRAORDINARY POWERS CLAIMED 147 

always covered the matter by ordinances or rules, and such or- 
dinances or rules have rarely been questioned. Conventions 
also frequently pass acts to put the new constitution into effect. 
Most of the ordinances of the South Carolina convention of 
1895, the Mississippi convention of 1890, the Louisiana conven- 
tion of 1898, and the Missouri convention of 1865, cited by Dodd 
as "ordinances of a purely legislative character" ^ turn out 
upon examination to be really incidental to the powers of the 
convention. 

Thus we see that conventions, unless expressly called for some 
further purpose, are bound to the framing of a constitution and 
the passage of necessary rules and ordinances incidental thereto. 
They have no power to legislate or to interfere with members of 
the other two branches of government. 

The powers of legislation permitted to a convention are appar- 
ently limited to preliminary, temporary, and provisional measures.^ 

A related question to the legislative powers of a convention 
is the question of its power to perform the functions assigned 
to the State legislature. Whatever may be said in theory in op- 
position to this assumption of power,^ the fact remains that it 
has been actually exercised. 

The Illinois convention of 1862 divided the State into con- 
gressional districts, under United States Constitution, Article 
I, Section IV, which assigns that duty to the State legislatures.'* 
This has also been uniformly done by conventions in territories 
seeking admission to the Union, and has been done by some 
reconstruction conventions.^ Such redistrictings, including the 
Illinois case, have uniformly been accepted by Congress. 

The same Illinois convention of 1862 ratified the pro-slavery 
amendment to the Federal Constitution, under United States 
Constitution, Article V, which assigns that duty to the State leg- 
islatures.® The validity of this action, however, was never deter- 
mined, as not enough other States ever ratified this amendment. 

Can conventions increase their own powers? This question is 
sometimes stated in the form: has a convention the power to 
amend the convention act which calls it into being? This is 

1 Bodd, p. 108. 2 6 R. C. L., § 18, pp. 27-28. 

^ Jameson, pp. 448-452. * Jameson, pp. 446-447. 

^ Jameson, p. 449. ^ Jameson, p. 450. 



148 CONSTITUTIONAL CONVENTIONS 

really the converse of the question of the powers of the legisla- 
ture and the people to restrict the convention. Any violation 
of valid restrictions may of course be ratijBed by the acceptance 
of the constitution or a ratifying ordinance by the people. 

Complete interference with the various branches of the 
government may perhaps be more successful than partial 
interference. If the old government is completely overthrown, 
there will be left no one in authority who can question the rights 
of the convention. Allusion has been made several times in 
this book to the statement by the Supreme Court of the United 
States that a court has no power to hold invalid the constitution 
under which it sits.^ 

The Rhode Island Supreme Court, to whom the Federal 
Court was referring in that quotation, went further and inti- 
mated that if the question had been before a court established 
by the rival government, that court would have had to decide 
exactly the opposite from this court.^ 

And as has already been intimated, the executive ojSicers 
having charge of money matters under the new government (or 
under the old government, if they were in sympathy with the 
new) could effectually put the new government into power 
by means of this control.^ 

Thus it appears that if a convention decides to exceed its 
proper functions and attempt to exercise convention sover- 
eignty, it had better be as sovereign as possible. Extremes 
of moderation and immoderation are thus seen to meet, in 
success. 

^ See pp. 101 and 102, supra; and 158, infra. 

2 " Trial of Dorr," p. 38. Quoted on p. 157, infra. 

^ See p. 93, supra. 



Chapter XII 
JUDICIAL INTERVENTION 

To what extent can the judicial branch of the government 
interfere with the procedure of constitutional amendment by 
the convention method? 

We can best understand the discussion of this question if we 
first consider the matter of judicial interference with amend- 
ments adopted under constitutional methods. Such a study will 
show us how ready the courts are to seize on the slightest flaw 
as a ground for declaring a supposed amendment to be void. 
Taking up first the case of amendments submitted by the 
legislature to a popular vote, we find the courts upsetting 
aruendments, even after popular ratification, on the following 
grounds: Because not enough legislators voted thereon;^ 
because the amendment had been entered in the House Journal 
by title instead of in full;^ because the amendment was proposed 
by a special instead of regular session;^ because of slight dis- 
crepancies in the journal entries of two sessions, although it 
was clear that both sessions acted on the identical amendment;^ 
because the proposed amendment was not advertised in the 
newspapers at just the right time;^ because the amendment 
treated two separable subjects;^ and for other similar reasons.'^ 

» Holmberg v. Jones (1901), 7 Ida. 752, 757-758. 

2 Koehler v. Hill (1883), 60 la. 543; State v. Brookhart (1901), 113 la. 250; 
People V. Strother (1885), 67 Cal. 624; Thomason v. Ruggles (1886), 69 Cal. 465; 
Paving Co. v. Hilton (1886), 69 Cal. 479; Paving Co. v. Tompkins (1887), 72 
Cal. 5; People v. Loomis (1904), 135 Mich. 556; Re Senate File, 25 Neb. 864, 
883-886; Burfee v. Harper (1899), 22 Mont. 354; State v. Tufley (1887), 
19 Nev. 391. 

^ People V. Curry (1900), 130 Cal. 82. This amendment, however, had not 
yet been acted on by the people. 

* Koehler v. Hill (1883), 60 la. 543. 

6 State V. looker (1894), 15 Mont. 8. 

6 State V. Powell (1900), 77 Miss. 543. The real reason for this decision, 
however, was that the amendment in question affected the tenure of the judges 
who rendered the decision. McBee v. Brady (1909), 15 Ida. 761; Armstrong v. 
Berkey (1909), 23 Ok. 176. 

^ McConaughty v. Secy, of State (1909), 106 Minn. 392; State v. Stoift (1880), 



150 CONSTITUTIONAL CONVENTIONS 

Of course, there are some decisions in which the courts have 
been more liberal, but these are mostly in earlier cases, before 
the control of the courts over the constitution had been fully- 
developed, and are in the minority. Dodd points out that since 
1890 the courts have frequently exercised supervision over all 
steps in the amending process,^ and he goes on to say, 

It may be said then that the courts exercise supervision over all 
steps of the amending process which are specified by the constitution.^ 

The italics in the last quotation are the present author's. They 
point out an important distinction. Following that distinction, 
it is probable that the courts would exercise the same super- 
vision over a convention, so far as that convention was author- 
ized by the constitution,^ as they would over the legislative 
method of amending. 

As Dodd says: 

Although, then, a convention, in framing a complete constitution 
or a revised instrument, would seem, in theory, to be bound by exist- 
ing constitutional restrictions upon the exercise of its power, as 
strictly as is the legislature in proposing constitutional amend- 
ments, yet there are difficulties in the way of enforcing this rule. 
If a constitution has been proposed for the approval of the people, 
a court would hardly enjoin its submission, although this might be 
done; if this were not done the only other opportunity for the 
court to act would be after a constitution had been approved and 
before it had gone into operation, for after it had become effective 
a court would hardly dare overturn the government organized under 
it when there were no opposing bodies claiming to be the lawful 
government — the question as to the validity of the constitution 
would have become a political question with wliich the court 
should properly refuse to meddle. On the whole it would seem that 
because of practical considerations courts must pursue a more liberal 
policy in passing upon the acts of a convention, especially after they 
have been approved by the people, than it has [sic] pursued in 

69 Ind. 505; Re Denny (1901), 156 Ind. 104; State v. Brooks (1909), 17 Wyo. 
344; Hatch v. Stoneman (1885), 66 Cal. 632; State v. Davis (1888), 20 Nev. 
220; Livermore v. Waite (1894), 102 Cal. 113; Collier v. Frierson (1854), 24 
Ala. 100. 

1 Dodd, p. 212, n. 157. 

2 Dodd, p. 215. 

3 The author has been unable to find any instances of this, however. 



JUDICIAL INTERVENTION 151 

interpreting the constitutional restrictions placed upon the legis- 
lative power to propose amendments.^ 

Or, as the Supreme Court of Alabama has said : 

We entertain no doubt that, to change the Constitution in any- 
other mode than by a Convention, every requisition which is 
demanded by the instrument itself must be fulfilled, and the 
omission of any one is fatal to the amendment.^ 

The real reason for this is probably the fact, as we have 
already seen, that as conventions may be held in the absence 
of constitutional provisions, or in the face of provisions pro- 
hibiting them, or even in a different manner from provisions 
permitting them, the constitution has really little to do with 
conventions, and hence constitutional provisions authorizing 
such conventions have no higher standing than bits of ordinary 
legislation to the same effect. This may explain the reason why 
courts are more hesitant to interfere with this amending process. 
We will therefore consider the judicial interference with the 
convention method, as if it were altogether an extraconstitu- 
tional proceeding. 

Can the courts interfere with such proceedings while they are 
pending? There is a good deal of authority that courts will not 
interfere with even the legislative method of amendment while 
it is pending, but will wait to pass on the validity of the finally 
adopted constitutional provisions.^ A fortiori, courts ought 
not to interfere with the convention method while it is pending. 
Yet courts have so interfered. The Pennsylvania Supreme 
Court issued an injunction prohibiting the convention of 1872 
from submitting their constitutional changes to the people 
in a way different from that prescribed by the convention act. 

The court said: 

The first remark to be made is, that all the departments of 
government are yet in full life and vigor, not being displaced by 
any authorized act of the people. As a court we are still bound 
to administer justice as heretofore. If the acts complained of in 
these bills are invasions of rights without authority, we must 
exercise our lawful jurisdiction to restrain them. One of our equity 

1 Dodd, pp. 102-103. 

2 Collier v. Frierson (1854), 24 Ala. 100, 108. 

3 Dodd, pp. 230-232. 



152 CONSTITUTIONAL CONVENTIONS 

powers is the prevention or restraint of the commission or con- 
tinuance of acts contrary to law, and prejudicial to the interests 
of the community or the rights of individuals. ... In this case 
we are called upon not to strike down, but to protect a lawful 
system, and to prevent intrusion by unlawful authority. If this 
ordinance is invalid, as we have seen it is as to the city elections, 
the taxes of the citizens will be diverted to unlawful uses, the 
electors will be endangered in the exercise of their lawful franchise, 
and an officer necessary to the lawful execution of the election law 
ousted by unlawful usurpation of his functions.^ 

Yet this court refused to interfere in matters of internal man- 
agement, even though they were in violation of the provisions 
of the convention act, saying: 

If they do this wrong, no appeal is given to the judiciary, and 
the error can be corrected only by the people themselves, by reject- 
ing the work of the convention.^ 

The Supreme Court of Oklahoma refused to interfere with a 
convention of that State, saying: 

The courts will not interfere by injunction or otherwise with the 
exercise of legislative or political conventions.^ 

Dodd comments on this decision as follows: 

This is simply a statement that the court would not interfere 
with the process of constitution-making, but would hold itself free 
to declare an act of the convention invalid, after it had been ap- 
proved by the people, if it were in excess of the convention's power .^ 

The process of amendment is a process of superior legislation, 
and the courts ordinarily decline to interfere with the processes of 
legislation, although they may always pass upon the vahdity of the 
completed product of such process.^ 

In one instance, in New York, the court, after taking juris- 
diction of a proceeding to interfere with the internal government 
of the convention, dismissed the proceeding because of a sharp 
rebuke administered by the convention.^ The convention said, 
in the course of this rebuke: 

' » Wells V. Bain (1872), 75 Pa. 39, 56-57. 

2 Wood's Appeal (1874), 75 Pa. 59. 

3 Franz v. Autry (1907), 18 Okla. 561, 604. 

« Dodd, p. 95. ^ Dodd, p. 232. 

8 See pp. 170-171, infra. 



JUDICIAL INTEEVENTION 153 

It is far more important that a Constitutional Convention should 
possess these safeguards of its independence than it is for an ordinary- 
Legislature; because the Convention's acts are of a more momen- 
tous and lasting consequence and because it has to pass upon the 
power, emoluments and the very existence of the judicial and 
legislative officers who might otherwise interfere with it.^ 

So much for the interference of the courts with pending 
convention proceedings. How about their interference with 
the constitutional changes, when these are finally adopted 
by the people? Some of the cases, which hold that the courts 
cannot interfere with pending proceedings, intimate that the 
time for interference is after the proceedings have been com- 
pleted. Thus the Supreme Court of Oklahoma says: 

The moment the constitution is ratified by the people, and 
approved by the President of the United States, then every section, 
clause, and provision therein becomes subject to judicial cognizance.^ 

And compare: 

It [i.e. the court] has the power, and it is its duty, whenever the 
question arises in the usual course of litigation, wherein the sub- 
stantial rights of any actual litigant are involved, to decide whether 
any statute has been legally enacted, or whether any change in the 
constitution has been legally effected, but it will hardly be con- 
tended that it can interpose in any case to restrain the enact- 
ment of an unconstitutional law. ... If they (the courts) cannot 
prevent the legislature from enacting unconstitutional laws, they 
cannot prevent it and the electors from making ineffectual efforts 
to amend the constitution.^ 

But as Dodd points out: 

But after a constitution has been submitted to and adopted by 
the people, additional difficulties present themselves in the way of 
declaring it or even particular portions of it invalid.^ 

The Harvard Law Review has recently set forth, in an edi- 
torial note, the following exhaustive views on this subject: 

Consider first the power of the courts to deal with a constitution 

* Report of Judiciary Committee, Rev. Record, N. Y. Conv. 1894, Vol. I, 
p. 245. 

2 Franz v. Autry (1907), 18 Okla. 561, 605. 

3 Cranmer v. Thorson (1896), 9 S. D. 149, 154-155. 

4 Dodd, p. 96. 



154 CONSTITUTIONAL CONVENTIONS 

which has been enacted by the convention without submission to 
popular vote, but has been accepted as in force by the other branches 
of the government. If the court assumes to declare the whole con- 
stitution invalid, maintaining that it is organized under the old, 
such a proceeding should be entirely futile. There is no organized 
government under the old constitution and by its hypothesis, the 
court has disclaimed its authority to bind any government claiming 
to be organized under the new. Where, as in the principal case, 
the court apparently admits the validity of the new constitution, 
but declares part of it invalid, its course seems even less justifiable. 
In recognizing part of the new constitution it must recognize its 
complete validity. Since a court cannot attack the fundamental 
law, it can declare the new constitution invalid only by action under 
the old. But this can no longer exist, for its existence is hopelessly 
inconsistent with the validity of the new. For whether it be called 
a lawful revision or a peaceful revolution, by an enactment of the 
new constitution the old government has been displaced and a 
new one substituted. The court is further beset in these cases 
by the difficulty that this acquiescence by the legislature may 
amount to a ratification by the people through the organized gov- 
ernment as their agent. If the court recognizes the power of the 
legislature to bind the convention, it is inconsistent to deny the 
legislature the power to unloose that bond. If it believe in con- 
ventional sovereignty it will, of course, never declare the con- 
stitution invalid. If in addition the constitution has been sub- 
mitted and adopted by popular vote, it would seem that any court 
which admits that the ultimate sovereignty is in the people must 
recognize its validity. 

But where the convention has merely amended the existing con- 
stitution a different question is presented. Here assuming the 
validity of the restrictions imposed on the convention, a court 
should have no difficulty in enjoining the submission of an amend- 
ment which involves a violation of those restrictions. But if the 
amendment is submitted for popular approval and is ratified, it 
seems that that expression of popular will should override any 
irregularity in violating any restriction not imposed by the con- 
stitution itself. If the amendment is merely enacted without 
submission to popular vote, then unless the acquiescence of the 
legislature can be construed to be an adoption, its validity may 
certainly be attacked.^ 

The Supreme Court of Pennsylvania, after interfering with 
the pending procedure {i. e. the convention ordinance establish- 
1 XXIX "Harv. Law Rev.," 531-532. 



JUDICIAL INTERVENTION 155 

ing a new election system for the submission of the constitu- 
tion) in the case of Wells v. Bain, refused to interfere with the 
completed constitution in the case of Wood's Appeal. The 
court said: 

The change made by the people in their political institutions, 
by the adoption of the proposed Constitution . . . forbids any 
inquiry into the merits of the case. The question is no longer 
judicial.^ 

Judge Jameson took the same view of the matter and said of 
this case: 

The constitution framed by the convention had been sub- 
mitted to and adopted by the people, including the change recom- 
mended to be made in the Bill of Rights ; and thus, however irreg- 
ular, or even revolutionary, its inception had been, it had become 
the fundamental law of the State, and the Supreme Court must 
accept it as such." 

Dodd, however, feels that the court might have acted in the 
second case as it did in the first, and says: 

Inasmuch as the Pennsylvania court regarded the statutory 
restriction as having a binding force equal to that of a constitu- 
tional restriction, it would seem that it might, in a case properly 
brought before it, logically have declared invalid the amendments 
to the bill of rights, in the same manner as courts declare invalid 
amendments not proposed in accordance with constitutional forms, 
even after their approval by the people. The provisions tainted 
by irregularity were here clearly separable from the remainder 
of the constitution.^ 

But he goes on to say: 

The courts would unquestionably be cautious about singling 
out and declaring invalid particular clauses in constitutions which 
had been approved by the people, but with reference to which con- 
stitutional requirements had not been strictly observed. No cases 
have squarely arisen upon this point, and cases would hardly arise 
where certain clearly separable parts of constitutions would be so 
tainted with irregularity as to warrant judicial annulment; should 
such cases arise, however, it is difl&cult to see why the judicial 

1 Wood's Appeal (1874), 75 Pa. 59. 

2 Jameson, p. 407. ^ Dodd, p. 97. 



156 CONSTITUTIONAL CONVENTIONS 

attitude should be any more liberal than with respect to consti- 
tutional amendments. The better view is that courts should not 
inquire too technically into irregularities in the submission of a 
constitution or of an amendment which has been ratified by the 
people.^ 

The Supreme Courts of Kentucky and Virginia concur with 
the Supreme Court of Pennsylvania in holding that the adop- 
tion of a constitutional amendment changes the question from 
a judicial one to a political one. Both cases involved the 
validity of constitutions which the convention had promulgated 
without submitting to the people, although required by the 
convention act to do so. 

The Kentucky Court elected to treat the question as one af- 
fecting the validity of the constitution as a whole and said: 

It is a matter of current history that both the executive and 
legislative branches of the government have recognized its validity 
as a constitution, and are now daily doing so. Is this question, 
therefore, one of a judicial character? Does its determination fall 
within the organic power of the court? 

The court further said that the people had acted under the 
constitution, 

the political power of the government has in many ways recog- 
nized it, and under such circumstances it is our duty to treat and 
regard it as a valid constitution and now the organic law of our 
Commonwealth.^ 

The Virginia Court said of the constitution of 1902 : 

The Constitution having been thus acknowledged and ac- 
cepted by the officers administering the government and by the 
people of the State, and being, as a matter of fact, in force through- 
out the State, and there being no government in existence under 
the constitution of 1869 opposing or denying its validity, we have 
no difficulty in holding that the Constitution in question . . . is the 
only rightful, valid, and existing Constitution of this State, and 
that to it all the citizens of Virginia owe their obedience and 
loyal allegiance.^ 

» Dodd, p. 98. 

2 Miller v. Johnson (1892), 92 Ky. 589. 

s Taylor v. Commonwealth (1903), 101 Va. 829, 831. 



JUDICIAL INTEEVENTION 157 

But 

The distinction between such a case and one involving merely 
an amendment, not in any manner pertaining to the judicial 
authority, must at once be apparent to the legal mind. The au- 
thorities recognize the distinction.^ 

The value of a judicial determination of the validity of a con- 
stitution is minimized by the principle which requires the mem- 
bers of a court to decide in favor of the constitution under 
which they themselves hold office. Thus the Rhode Island 
Supreme Court said at the trial of Dorr: 

If a government had been set up under what is called the 
People's Constitution, and they had appointed judges to give effect 
to their proceedings, and deriving authority from such a source, 
such a court might have been addressed on a question like this. 
But we are not that court. We know and can know but one govern- 
ment, one authority in the State. We can recognize the Consti- 
tution under which we hold our places, and no other. All other 
proceedings under any other are to us as nullities.^ 

Likewise the United States Supreme Court said, in a case 
growing out of the Dorr controversy: 

Where a claim exists by two governments over a country, 
the courts of each are bound to consider the claims of their own 
government as right, being settled for the time being by the proper 
political tribunal.^ 

And this principle was carried out by a court acting under 
the new government in a West Virginia case: 

The legality of the election for officers held on the 22nd day of 
August, 1872, after the ratification of the new constitution and 
schedule, is not to be called in question by any court created or 
continued by the provisions of that constitution. When it is 
proposed that this Court shall determine that the sovereign power 
of this state cannot lawfully commission a judge of its own crea- 
tion, it is invited to commit judicial suicide. Courts sit to ex- 

1 Koehler v. Hill (1883), 60 la. 543, 614. 

2 "Trial of Dorr," p. 38. 

^ Luther v. Borden (1849), 7 How. 1, 57; citing Williams v. Suff. Ins. Co., 
3 Sumner 270. 



158 CONSTITUTIONAL CONVENTIONS 

pound the laws made by their government, and not to declare that 
government itself an usurpation.^ 

The idea of "judicial suicide" expressed by the West Virginia 
Court has also been phrased as follows: 

A court which under the circumstances named, should enter 
upon an inquiry as to the existence of the constitution under 
which it was acting, would be like a man trying to prove his per- 
sonal existence, and would be obliged to assume the very point 
in dispute, before taking the first step in the argument.^ 

The singular spectacle of a court sitting as a court to declare 
that we are not a court.^ 

And if a state court should enter upon the inquiry proposed in 
this case, and should come to the conclusion that the government 
under which it acted had been put aside and displaced by an op- 
posing government, it would cease to be a court, and be incapable 
of pronouncing a judicial decision upon the question it undertook 
to try. If it decides at all as a court, it necessarily affirms the 
existence and authority of the government under which it is 
exercising judicial power.^ 

Thus a judicial determination of the validity or invalidity 
of a new constitution merely means that the judges who render 
it are very much attached to their positions. 

All of the foregoing discussion has related to interference 
with the amending process. The power of the courts to inter- 
fere with the convention when it is exercising powers outside 
the main purpose of its creation, presents an entirely different 
question. 

As Dodd says: 

It has already been suggested that a court would find it difficult 
to declare a complete constitution invalid because of irregularities 
in the proceedings or action of a convention. What is the attitude of 
the courts in enforcing these implied restrictions upon the powers 
of a convention, in preventing encroachments by a convention, 
upon powers reserved to other governmental organs of the state? 
In the first place it should be said that a convention's action in 

1 Loomis V. JacJcson (1873), 6 W. Va. 613, 708. 

2 Koehler v. Hill (1883), 60 la. 543, 608-609. 

3 Brittle v. People (1873), 2 Neb. 198, 214. 

4 Luther v. Borden (1849), 7 How. 1, 40. 



JUDICIAL INTERVENTION 159 

these matters may be controlled by the courts much more easily 
than irregularities in the framing of a complete constitution. 
If a convention should attempt to remove an officer of the state 
government and to appoint another in his place, the court may 
properly restore the removed officer without in any way inter- 
fering with the convention's proper functions; if the convention 
passes an ordinance of a purely legislative character, the court 
in a case properly brought before it may declare the ordinance 
invalid and decHne to enforce it. Improper acts committed by 
a convention in the framing of a constitution may be acts done 
in the exercise of a power within the competence of the conven- 
tion, and are difficult to correct, because of the close interrela- 
tion of the irregular acts with those which may be regular and 
proper. When it encroaches upon the existing government, a 
convention acts in excess of power and its action may be con- 
trolled without interference with the functions which properly 
belong to it.'^ 

and see also the following quotations from other sources: 

The claim for absolute sovereignty in the convention, appar- 
ently sustained in the opinion, is of such magnitude and over- 
whelming importance to the people themselves, it cannot be 
passed unnoticed. In defence of their just rights, we are bound 
to show that it is unsound and dangerous. Their liberties would 
be suspended by a thread more slender than the hair which held 
the tyrant's sword over the head of Damocles, if they could not, 
while yet their existing government remained unchanged, obtain 
from the courts protection against the usurpation of power by 
their servants in the convention. . . . 

There is no subject more momentous or deeply interesting to 
the people of this state than an assumption of absolute power 
by their servants. The claim of a body of mere deputies to 
exercise all their sovereignty, absolutely, instantly, and without 
ratification, is so full of peril to a free people, living under their 
own instituted government, and a well matured bill of rights, 
the bulwark and security of their liberties, that they will pause 
before they allow the claim and inquire how they delegated this 
fearful power and how they are thus absolutely bound and can 
be controlled by persons appointed to a special service. Struck 
by the danger, and prompted by self-interest, they will at once 
distinguish between their own rights and the powers they commit to 
others. These rights it is, the judiciary is called in to maintain.^ 

1 Dodd, pp. 108-109. « Wood's Appeal (1874), 75 Pa. 59, 69. 



160 CONSTITUTIONAL CONVENTIONS 

While it [i. e. the convention] acts within the scope of its dele- 
gated powers, it is not amenable for its acts, but when it assumes 
to legislate, to repeal and displace existing institutions before they 
are displaced by the adoption of its propositions, it acts without 
authority, and the citizens injured thereby are entitled, under the 
declaration of rights, to an open court and to redress at our hands.'^ 

But the question was made whether the convention which 
passed the ordinance was not limited by the purpose for which 
it was assembled; and I am of opinion that it was so limited. 
And this detracts in no degTee from the sovereign character of 
its act when within that purpose. We have no authority to 
judge of, revise or control any act of the people; but when any 
thing is presented to us as the act of the people, we must of neces- 
sity judge and determine whether it be indeed their act. The sole 
difficulty seems to me to have arisen from confounding together 
the authority attributed by the constitution to the people, with 
that of the convention. Certainly the convention was not the 
people for any other purpose than that for which the people 
elected and delegated them.^ 

We have already seen that the convention is really a fourth 
branch of the government.^ The same rules with respect to 
judicial interference ought to apply as would apply to judicial 
interference with either the legislature or the executive. So 
long as the convention is acting within the scope of its duties as 
a framer of constitutions, the courts ought not to interfere, no 
matter how much the convention appears to exceed its powers. 
But the moment a convention strays into legislative, executive, 
or judicial fields, it is the duty of the court, acting under the 
existing constitution, to promptly put a stop to such usurpation. 

So much for the State courts. What should be the attitude 
of the Federal courts toward a State constitutional convention? 
It would seem that the Federal courts ought not to interfere, 
except in the case of a violation of the Federal Constitution. 
There are no Federal decisions on amendments adopted by the 
convention method, but the language of the decisions relating 
to legislative amendments is broad enough to cover the case of 
conventions. There are two decisions on this point in inferior 
Federal courts. The case of Smith v. Good was an action upon 

1 Wells V. Bain (1872), 75 Pa. 39, 57. 

2 McCready v. Hunt (1834), 2 HUI Law (S. C.) 1, 270. 
2 See pp. 89-91, supra. 



JUDICIAL INTERVENTION 161 

a promissory note given for the purchase of liquor in violation 
of the Rhode Island prohibition amendment of 1866. The 
plaintiff contended that the amendment had not been legally- 
adopted. But the court said: 

When the political power of the state declares that an amend- 
ment to the constitution has been duly adopted, and the amend- 
ment is acquiesced in by the people, and has never been adjudged 
illegal by the state court, the jurisdiction of a federal court to 
question the validity of such a change in the fundamental law 
of a state should clearly appear. . . . The very framework of the 
federal government presupposes that the states are to be the judges 
of their own laws; and it is not for the federal courts to interpose, 
unless some provision of the federal constitution has been violated. 
It is not pretended in this case that any federal question is raised.^ 

An opposite position was taken in the later case of Knight 
V. Shelton. This was a suit for damages brought against elec- 
tion officials because they refused to receive the plaintiff's vote 
for member of Congress. The defendant relied on the failure of 
the plaintiff to pay a poll tax as required by an Arkansas amend- 
ment in 1892. The court held that this amendment had not 
been legally adopted.^ Dodd says: 

Knight V. Shelton and Smith v. Good are, of course, easily dis- 
tinguishable on the ground that in the fii'st case no federal ques- 
tion was involved, while in Knight v. Shelton a federal question 
was raised as to the right to vote for members of Congress. But 
whether the plaintiff had been improperly deprived of such right 
depended upon an amendment which had been acted upon by the 
state as valid for twelve years, and which had not been passed 
upon by the state court.^ 

In Knight v. Shelton the question was not raised as to the im- 
propriety and possible inconvenience of a federal court's passing 
upon the validity of a state constitutional amendment as tested 
by the requirements of the state constitution. It happens that 
the Arkansas court has in a later case taken a view similar to that 
taken by the federal court, but suppose it had taken a contrary 
view, and should insist upon treating as valid an amendment which 
the federal court had declared invalid. We should then have the 

» Smith V. Good (1888), 34 Fed. 204, 205-206. 
2 Knight v. Shelton (1905), 134 Fed. 423, 441. 
2 Dodd, pp. 226-227, n. 190. 



162 CONSTITUTIONAL CONVENTIONS 

absurd situation of an amendment valid in the state courts and 
at the same time invahd in the federal courts, unless the federal 
courts should follow the state decision after it is rendered.^ 

An attempt has recently been made in the Federal courts to 
set aside a State constitutional amendment, on the ground that 
it was contrary to the principles of republican government 
guaranteed by the Federal Constitution to the States. But 
the court refused to pass on this point, saying that it was a po- 
litical question.^ In view of this decision, it is unlikely that the 
Federal courts will ever again be called on to interfere with 
amendments to State constitutions, unless a Federal question is 
involved. 

On the whole, the question of judicial interference by either the 
State or the Federal judiciary with the exercise by the convention 
of its fourth-branch power is seen to be a political question, and 
hence outside the jurisdiction of the court. See the following 
quotations on this point: 

The change made by the people in their political institutions, 
by the adoption of the proposed Constitution since this decree, 
forbids an inquiry into the merits of this case. The question is no 
longer judicial.^ 

In forming the constitutions of the different States, after the 
Declaration of Independence, and in the various changes and 
alterations which have since been made, the political department 
has always determined whether the proposed constitution or 
amendment was ratified or not by the people of the State, and the 
judicial power has followed its decision.* 

The question, whether the new matter contained in the Con- 
stitution adopted by the convention of 1913 is satisfactory to the 
people of this state and should be retained in force and effect, 
is, in my humble opinion, a political question, and not a legal 
question.^ 

A closely related question is whether the validity of adoption 
is a political or judicial question; a difficulty which can only be 
pointed out without discussion here. The difficulty of treating 

1 Dodd, p. 227. 

2 Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118. 

3 Wood's Appeal (1874), 75 Pa. 59, 68-69. 

4 Luther v. Borden (1849), 7 How. 1, 39. 

5 Foley V. Dem. Com. (1915), 70 So. 104, 105. 



JUDICIAL INTERVENTION 163 

it as a judicial question is evidenced by a peculiar doctrine of our 
law. Courts which declare their power to overthrow an invalid 
amendment, will refuse to do so if such an amendment has been 
in force unquestioned for a considerable time. To reconcile these 
two ideas seems impossible; but the doctrine may indicate that 
this should more properly be treated as a political question, and 
that the courts should have no power to overthrow any amendment 
which the other branches of the government have recognized 
as valid.^ 

Courts and Juries, gentlemen, do not count votes to determine 
whether a constitution has been adopted, ... It belongs to the 
Legislature to exercise this high duty ... we cannot revise 
and reverse their acts, in this particular, without usurping their 
power. ... if we did so, we should cease to be a mere judicial, 
and become a political tribunal, with the whole sovereignty in 
our hands. . . . Sovereignty is above Courts or Juries, and the 
creature cannot sit in judgment on its creator.^ 

If the courts cannot interfere with the fourth-branch func- 
tions of a convention, can they assist the convention? By 
analogy from the attitude of the courts toward the functions 
of the executive and legislative branches, it would seem that the 
courts ought to render this assistance. 

An example of this is furnished by a recent Michigan case. 
The Secretary of State refused to submit the constitution pre- 
pared by the convention of 1908 on the ballots of the November 
election, contending that action ought to be had in April. The 
president of the convention applied to the Supreme Court for 
a mandamus to compel the Secretary of State to obey the con- 
vention's orders. The Supreme Court granted this mandamus.^ 

In North Dakota, the legislature, without constitutional 
authorization, passed a joint resolution, submitting to the elec- 
torate the question of holding a convention, and secured a 
mandamus forcing the Secretary of State to place the question 
on the ballots.* 

Thus the courts will assist, if necessary, in putting through the 
convention procedure. 

Another way in which the courts can assist the convention 

» XXIX "Harv. Law Rev.," 532-535. 

2 "Trial of Dorr," p. 85. 

3 Carton v. Secy, of State (1908), 151 Mich. 337. 

4 State V. Dahl (1896), 6 N. D. 81. 



164 CONSTITUTIONAL CONVENTIONS 

method of amendment would be to render judicial advice if re- 
quested. Judicial advice has been rendered by the Supreme 
Courts in New York, Massachusetts, Rhode Island, and New 
Hampshire to the legislatures of those States on matters per- 
taining to the constitutional convention.^ 

Whether the court would render advice at the request of the 
convention itself would depend upon the general attitude of the 
court toward its advisory functions. Thus the Supreme Court 
of New York, which rendered its opinion to the legislature 
without any constitutional duty to do so, would undoubtedly 
take the same attitude if requested by the convention. The 
Supreme Court of Massachusetts, on the other hand, always 
strictly interprets the constitutional provision for rendering ad- 
vice to the Governor and legislature and refuses to do so unless 
absolutely bound. This court, therefore, would probably refuse 
to advise the convention. 

On the whole, it may be said that the courts have no power to 
interfere with convention proceedings relative to the framing 
of the constitution and will probably treat the finally adopted 
changes as a political question, although the courts will pre- 
vent the convention from usurping the powers of other depart- 
ments. The courts will assist the convention to perform its 
legitimate functions and will prevent the encroachment of any 
other branches of government upon it. The courts will advise 
the other branches of the government relative to the convention 
and will advise the convention in States where the courts do not 
interpret their advisory duties too strictly. 

^ Journal, 69th N. Y. Assembly, p. 918; Opinion of Justices (1833), 6 Cush. 
573; 1917 Mass. Senate Doc, 512; Opinion of Justices (1883), 14 R. I. 649; 
Opinion of Justices, 76 N. H. 586 and 612. 



Chapter XIII 

DOES THE CONSTITUTION APPLY? 

An interesting and important question is the extent to which 
the existing constitution apphes to a convention called to revise 
it. Dodd says: 

It is clear that existing constitutional provisions are binding 
upon a convention. A convention does not in any way supersede 
the existing constitutional organization and is bound by all restric- 
tions either expressly or impliedly placed upon its actions by the 
constitution in force at the time. A new constitution does not 
become effective until promulgated by the convention, if this is 
permitted by the existing constitution, or until ratified by the 
people, if such action is required. In replacing the existing consti- 
tutional organization a convention properly acts only by the in- 
strument of government which it frames or adopts.^ 

But we must remember that Dodd is writing in a State ^ where 
the only conventions are those which the constitution of that 
State purports to authorize, which probably influenced his 
point of view. This chapter is designed to meet his argument 
and also that of the following quotations, which appear to hold 
that the existing constitution applies to extraconstitutional 
conventions: 

Some are apt to forget that the people are already under a con- 
stitution with an existing frame of government instituted by them- 
selves, which stand as barriers to the exercise of the original powers 
of the people, unless in an authorized form.^ 

In the words of the Father of his Country, we declare, " that the 
basis of our pohtical systems is the right of the people to make and 
alter their constitutions of government; but that the constitution 
which at any time exists, till changed by an explicit and authentic 
act of the whole people, is sacredly obUgatory upon all." ^ 

1 Dodd, pp. 92-93. ^ Illinois. 

3 Wdls V. Bain (1872), 75 Pa. 39, 53. * R. I. Bill of Rts., § 1. 



166 CONSTITUTIONAL CONVENTIONS 

But, when analyzed, these quotations are seen merely to hold 
that the existing constitution remains in force until superseded 
by the new. 

It may well be that the constitution applies to the proceedings 
of a convention which is called under express provisions of the 
constitution authorizing such a convention; and it would seem 
in the main to be true that, at least when the people adopt the 
provisions of a constitution by voting under it to hold a conven- 
tion, those constitutional provisions become absolutely binding 
upon the convention. 

That the binding force of constitutional provisions on con- 
ventions held by authority of the constitution is due not to the 
constitution itself, but to the popular vote thereunder, is borne 
out by the case of the Delaware convention of 1852. In this 
case the popular vote on the question of holding the convention 
was less than that required by the constitution. Nevertheless, 
the convention was called and held. 

Similarly in Indiana, in 1850, a convention was held under 
the provisions of the constitution at a year different from that 
prescribed by that document.^ 

Compare also the discussion of the force of general constitu- 
tional provisions on the qualifications of voters, which subject 
is discussed in the chapter on submission of amendments.^ 

Regardless of whether the constitutional provisions are 
binding in the case of a convention held ostensibly under the 
constitution, they are not binding on conventions which are 
clearly ea;^ra-constitutional. We have already seen that the 
constitution has no power to prevent the holding of such con- 
ventions, either by implied or even by express prohibition.^ 

If the constitution cannot prevent the holding of such a con- 
vention, is it reasonable to suppose that the constitution can 
limit such a convention? The power to limit is the power to 
destroy. If the convention can defy the constitution in the 
matter of its complete existence, it can certainly defy the con- 
stitution in the matter of attempted limitations. 

We shall see in another chapter that members of such con- 
ventions, although they hold office under the authority of the 
State, do not hold office under authority of the State constitvr 

^ See these and other sunilar instances, pp. 50-52, supra. 

2 See pp. 205-212, infra. ^ See pp. 39-43, 48-49, supra. 



DOES THE CONSTITUTION APPLY? 167 

tion} Similarly we shall see that when a convention has general 
powers to submit the fruit of its labors to the people for ratifi- 
cation, it may choose for that purpose whatever electorate it 
considers will best represent the people.^ 
And compare: 

Under the Constitution of 1879, the power of the Legislature to 
submit proposals to the people for the holding of a convention was 
not subject to the restrictions applicable to constitutional amend- 
ments.^ 

Thus the State constitution may apply to some extent to 
conventions held under its express authority, but clearly has 
absolutely no application to extraconstitutional conventions. 
Dodd intimates that the subject matter of new amendments 
may be limited by the already existing constitution, but he 
states that in the present State constitutions there are practi- 
cally no restrictions upon the character of proposed amend- 
ments. Such restrictions were formerly held binding on the 
legislative amending process.^ But he suggests: 

It may be that the constitutional difficulty might in certain cases 
have been evaded by first abrogating the restriction by an amend- 
ment, and then adopting the desired change. But, as has been 
suggested, the state constitutions now in force contain practically 
no such restrictions, and amendments are therefore subject to 
judicial control, as tested by the state constitutions, with respect 
to their method of enactment only and not with respect to their 
content and substance.^ 

Thus the question now has merely an academic Interest. 
Nevertheless it would seem that the people in their sovereign 
capacity, as represented by the convention, might destroy any 
part of a constitution which they have the power to destroy in 
full. It seems absurd to think that the people could preclude 

* See pp. 185-187, infra. 

^ See pp. 205-212, infra. The recent opinion of the Supreme Court of 
Massachusetts (1917, Senate Doc, 512) may appear, at first glance, to rebut 
this proposition. But it is to be noted that the court expressly refused to pass 
upon the question of whether or not the convention is to be held under the 
constitution. See a discussion of this opinion, pp. 208-210, infra. 

3 State V. Am. Sugar Co. (1915), 137 La. 407, 414; State v. Favre (1899), 51 
La. Ann. 434, 436. 

^ Dodd, p. 236, and cases cited. 

B Dodd, p. 236. 



168 CONSTITUTIONAL CONVENTIONS 

themselves as to subject-matter of amendments, any more than 
one generation could preclude another as to methods of amend- 
ment. Thus the legislature, people, and Supreme Court of 
Maine connived to strike out of the original Maine constitution 
some provisions which were expressly declared to be irrepealable 
without the consent of the legislature of Massachusetts.^ 

Thus we see that, in the case of authorized conventions, the 
provisions of the existing constitution probably apply, so far as 
applicable. This is certainly true to the extent that the people 
choose to avail themselves of the constitutional provisions. 

But in the case of an extraconstitutional convention, the 
constitution has no more power to restrict the convention pro- 
cedure than it has to prevent the convention's existence. 

Does the Federal Constitution apply? The following quota- 
tion from Ruling Case Law will serve to lead us from the inap- 
plicability of State constitutions to the applicability of the 
Federal Constitution. 

The character and extent of a constitution that may be framed 
by that body is generally considered as being freed from any limi- 
tations other than those contained in the constitution of the United 
States. If on its submission to the people it is adopted, it becomes 
the measure of authority for all the departments of government — 
the organic law of the state, to which every citizen must yield an 
acquiescent obedience.^ 

Holcombe goes even further and contends that the union of 
the States in 1787 forever destroyed the fundamental right of 
the people of each State to change their government at will. 

He says: 

By the Federal Constitution of 1787, the right of revolution was 
definitely taken away from the people of the separate states and 
reserved exclusively to the people of the United States as a whole. 
Under the more perfect union the whole power of the United States 
stands ready to protect the established government of any state 
against domestic violence. There can be no state revolution, 
therefore, which is not at the same time a national revolution.^ 

The following are some more moderate expressions of opinion 
on the subject: 

1 Thorpe, Vol. VII, p. 4178, Art. X, § 5; p. 4186, § 7. 

2 6 R. C. L., § 17, p. 27. 

^ Holcombe, State Government, p. 33. 



DOES THE CONSTITUTION APPLY? 169 

The federal constitution is, of course, superior to a state consti- 
tution, and any amendment conflicting with the federal instrument 
is invaUd.^ 

As an organ of the state and as a legislative body a convention 
is, of course, subject to the provisions of the federal constitution 
as to contracts, ex post facto laws, and to all other restrictions im- 
posed upon the states by that instrmnent.^ 

It has, however, been recently held that the provisions of the 
Federal Constitution guaranteeing a republican form of gov- 
ernment to each State, do not apply to restrict the subject 
matter of State constitutions.^ These provisions were inserted 
in the Federal Constitution to protect, not to hamper the 
States. 

Of course the Federal Constitution contains no provisions 
which would interfere with the proceedings of the convention 
method except the guarantee in the XVth article of amendments, 
which provides that 

The right of citizens of the United States to vote shall not be de- 
nied or abridged by the United States, or by any State, on account 
of race, color, or previous condition of servitude. 

Provisions in the Federal Constitution requiring certain things 
to be done by a State legislature might give the Federal gov- 
ernment the right to disregard such acts if done by a convention 
under the assumption of legislative powers.^ 

Thus the Federal Constitution applies to the proceedings only 
with respect to the right to vote, and applies to the results only 
so far as they violate provisions of the Constitution, excepting 
however the provision guaranteeing to the States a republican 
form of government. 

] 1 Dodd, p. 235. 
2 Dodd, p. 93, and cases cited. 

s Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118. 
* See p. 147, supra. 



Chapter XIV 

INTERNAL PROCEDURE 

Whatever control the other departments of the government 
have over a convention, it is obvious that the internal control 
of the convention by itself presents an entirely different ques- 
tion. As Dodd says: 

Even if we should assume that the legislature may limit a con- 
vention as to the submission of a constitution, or as to methods of 
submission, it would yet seem clear that the legislature cannot de- 
prive a convention of powers necessary for its conduct as a delib- 
erative assembly. The convention would seem in any case, in the 
absence of constitutional requirements in the matter, to have 
power to establish its own rules of order and of procedure, elect 
its officers, pass upon the qualifications and election of its members, 
and to issue orders for elections to fill vacancies in its membership.^ 

And compare: 

It is a deliberative body, having all the necessary authority to 
make rules for its own procedure, and to decide upon all questions 
falling within the scope of its authority .^ 

We have already seen in the discussion of the legislative 
powers of a convention that it has undoubted power to pass such 
rules and ordinances as are necessary for its own proceedings.^ 

Primarily, a convention is the sole judge of the elections of 
its own members. This is illustrated by the case of the New 
York convention of 1894. The convention was proceeding to 
determine a contested election case, whereupon one of the 
contestants applied to the Supreme Court for an injunction 
to prohibit the convention from passing upon the question, 
claiming that whether or not he was entitled to the seat was 

1 Bodd, p. 88. 

2 Wells V. Bain (1872), 75 Pa. 39, 55. 
^ See pp. 146-147, supra. 



INTERNAL PROCEDURE 171 

a question for the determination of the courts. The court 
assumed jurisdiction and was about to proceed with the case, 
but the Judiciary Committee of the convention adopted a strong 
report denying the power of the court, and the court promptly 
accepted the rebuke and discontinued the case.^ The following 
quotation from the convention report, to which the court 
yielded, is instructive: 

It is of the greatest importance that a body chosen by the people 
of this state to revise the organic law of the state, should be as 
free from interference from the several departments of govern- 
ment, as the legislative, executive and judiciary are, from inter- 
ference by each other.^ 

This report also contains a valuable collection of precedents 
of contested elections in ninety-four American conventions, 
and concludes therefrom that: 

Without any exception, the practice has been uniform from 
first to last in favor of the Convention exercising the prerogative 
of deciding who were elected members.^ 

The power to be the judge of their own elections may carry 
with it by implication the power to fill vacancies. This, how- 
ever, is denied by Jameson at considerable length. Jameson 
denies that a convention can itself fill vacancies in its own 
ranks because, as he says, that would render the convention 
'pro tanto self-appointing; and for the same reason he denies 
its right to authorize the colleagues of resigning or deceased 
members to name their successors.^ No cases have arisen in 
which a convention has tried to do either of these things without 
being expressly authorized by the convention act. 

A different question is presented, however, when we consider 
whether a convention can issue precepts to the constituencies 
of retiring or deceased delegates, directing new elections to fill 
the vacancies. The only case in which any dispute has arisen 
over this power was the Berlin controversy in the Massachusetts 

^ Lincoln, Const. Hist, of N. Y., Vol. Ill, p. 666. Elihu Root was chairman 
of this committee. Lincoln himself drew the report. It was unanimously ac- 
cepted by the convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 270. 

2 Rev. Record, N. Y. Conv. 1894, Vol. I, p. 250. 

3 Rev. Record, N. Y. Conv. 1894, Vol. I, p. 267-270. 
* Jameson, p. 331. 



172 CONSTITUTIONAL CONVENTIONS 

convention of 1853, which is discussed at length by Jameson.* 
It must be remembered, however, that this contest was in 
reality the first struggle for supremacy between two opposing 
parties in that convention, and was based more on the question 
of the power of the legislature to amend the convention act 
by abolishing the secret ballot, than on the question of the 
power of the convention to authorize the filling of vacancies. 
But, whatever we may think of the arguments pro and con in 
that convention, we cannot evade the fact that the convention 
by an overwhelming majority decided in favor of its power to 
authorize the filling of vacancies. 

This precedent, coupled with the well-known power of all 
parliamentary bodies to provide for the filling of vacancies in 
as near as possible the same manner as the original seats were 
filled,^ leads inevitably to the conclusion that conventions do 
have the power which was successfully asserted by the Massa- 
chusetts convention of 1853. 

A book published by the recent Constitutional Convention 
Commission in New York says : 

Another question of importance is that as to the filling of va- 
cancies which may occur after delegates have once been elected 
to a constitutional convention. In conventions there have been 
a number of elaborate and somewhat theoretical arguments re- 
garding the power of a convention to provide for the filling of 
vacancies therein, in the absence of constitutional or statutory 
provision for this purpose. The more sensible view under such 
circumstances is that the convention may direct an election to 
fill a vacancy.^ 

The status and oaths of delegates are discussed in the next 
chapter. 

Obviously the first duty of a convention is to obtain quarters. 
Jameson says: 

The general rule is undoubtedly this : — as Conventions are 
commonly numerous assemblies, containing, in most cases, the 
same number of members as the State legislatures, they are pos- 

^ Jameson, pp. 333-342. 

2 Opinion of Justices (1S26), 3 Pick. 517, 520. 

^ N. Y. Rev. of Consts., p. 58. The full title is "Revision of the State Con- 
stitution," published by the New York Constitutional Convention Commission 
in 1915. 



INTERNAL PROCEDURE 173 

sessed of such powers as are requisite to secure their own comfort, 
to protect and preserve their dignity and efficiency, and to insure 
orderly procedure in their business. For the attainment of these 
ends, they are not without the authority possessed by agents in 
general, and, in my judgment, they are possessed of no other or 
greater. Thus, they must have a suitable hall, adequately 
warmed and hghted; and, though the Acts calling them were 
silent on .the point, they would unquestionably have power to 
engage one, and to pledge the faith of the State for the rental 
thereof.^ 

The next requirement would be to obtain suitable officers. 

There can be no doubt, a Convention would be authorized to 
appoint such officers and servants as the custom of public assem- 
blies, in free communities, has sanctioned, or as may seem under 
the circumstances to be necessary. 

In respect to a president and secretary or secretaries there can 
be no question. The convenience of members and the despatch 
of business would point also to messengers or pages as requisite. 
The same may be said perhaps of one or more door-keepers, since, 
if the hall where the session is held, were accessible to everybody, 
at all hours, the functions of the Convention might be seriously 
interrupted, and its dignity insulted. With respect to a sergeant-at- 
arms, some doubt exists. It is a universal practice in Conventions 
to appoint such an officer, and the right of doing so for certain 
purposes cannot be denied.^ 

The doubt with relation to the powers of this officer comes 
under the head of maintaining order to be discussed a little 
later in this chapter.^ 

Having engaged its hall and chosen its officers, the convention 
must next adopt some method of procedure, and to this end 
maj^ establish all necessary rules. These are frequently modeled 
after the rules of the more numerous legislative body of the 
State. 

A Convention having provided itself with the officers needed 
to do or to expedite its work, its attention would be next directed 
to the subject of maintaining order in the transaction of its business, 
and in the conduct of its members. For this purpose rules of order 
are necessary. There is sometimes inserted in the Act calling the 
Convention, a power to estabhsh such rules as should be deemed 

' Jameson, pp. 455-456. ^ Jameson, p. 456. * See p. ISO, infra. 



174 CONSTITUTIONAL CONVENTIONS 

requisite; but, without such a clause, a Convention would clearly 
be authorized so to do. It is usual, before rules have been reported 
by the special committee for that purpose, to adopt temporarily 
those of the last Convention, or of the last State House of Repre- 
sentatives. In the absence of such a vote, it has been said that 
the lex parliamentaria, as laid down in the best writers, is in force. ^ 

Legislative acts, under which conventions have been assembled, 
have usually not attempted to determine in any detail how con- 
ventions should proceed. A constitutional convention should 
have freedom to determine its own organization and procedure.^ 

If the purpose is merely that of proposing a few amendments 
to the constitution, as has several times been the case in New 
Hampshire, the procedure should naturally differ from that in a 
convention which proposes to submit a complete revision of the 
constitution, or at least to scrutinize carefully all provisions of 
an existing constitution.^ 

Jameson points out that the convention may enter upon 
its task of framing or amending the constitution either directly 
as a body or by resolving itself into a committee or committees. 
Two of the three common methods of procedure by committees 
are (a) the committee of the whole, or (b) to appoint a single 
selected committee of limited numbers to draft the amend- 
ments. Jameson refers to only ten conventions which have 
adopted the second plan, all but two of these occurring dur- 
ing the Revolutionary War period.^ It is obvious that the 
reason for adopting this method at that time was that the 
main duties of those conventions was governmental rather than 
constitution-framing. 

The third and most common method of procedure is for the 
convention to apportion the work among several committees. 

The Cyclopaedia of American Government says of these three 
alternative methods: 

In the framing of a constitution it, of course, may be possible 
for a convention to conduct all of its work directly in convention — - 
that is, acting, as a body, without going into committee of the whole 
or dividing the work among committees. But such a plan would 
be cumbersome and unsatisfactory and has not been employed. 

* Jameson, pp. 460-461. ^ N. Y. Revision of Consts., p. 60. 

3 N. Y. Revision of Consts., p. 62. * Jameson, pp. 287-289. 



INTERNAL PROCEDUEE 175 

The plan ordinarily employed is that of using committees. In the 
use of committees tln-ee methods have been employed: (1) The 
transaction of business mainly in committee of the whole, with 
perhaps some smaller committees appointed to handle particular 
matters. This method is one which would be apt to work unsatis- 
factorily unless the plans for a constitution had been pretty well 
matured before the meeting of the convention. The committee 
of the whole was used to a large extent by the federal convention 
of 1787, and was adopted also by the Pennsylvania convention 
which met in 1789. 

(2) In a number of the earlier conventions the plan was adopted 
of appointing a small committee, with full power to prepare and 
report a draft of a constitution to the full convention. This plan 
was adopted by the revolutionary conventions of Maryland, 
Virginia, New Jersey and Pennsylvania in 1776, and by those of 
New York and Vermont in 1777, but the conventions in these cases 
were assembled not only for the framing of constitutions, but also 
for the conduct of warlike operations, and the appointment of a 
special committee left the other members of the convention free to 
attend to the general duties of these bodies, which were equally 
urgent. The Massachusetts general court in 1778 appointed a 
special committee to frame a constitution, as also did the Massa- 
chusetts convention of 1779-80, the Tennessee convention of 
1796, and the Cahfornia convention of 1849. 

(3) But the more usual practice has been for a convention to 
appoint a number of committees, and to distribute among them 
the several parts of the constitution, to be considered and reported 
upon to the convention either in regular session or in committee 
of the whole. The number of committees appointed for such 
a purpose has varied considerably, running from four in one case 
to more than thirty in others. The members of such committees 
have been as a rule appointed by the president of the convention. 
One of the most important committees of a convention is the 
committee on style or on arrangement and phraseology, which is 
usually appointed for the purpose of harmonizing the various 
proposals adopted by the convention and putting a constitution into 
something like the final form in which it should be adopted.^ 

It is well not to model these committees directly on the com- 
mittees of the legislature, for if this is done, some committees 
will be found overburdened by work and others without a 
single matter referred to them. 

1 I Cyc. American Govt., 428. 



176 CONSTITUTIONAL CONVENTIONS 

See the following further quotations on the number and 
make-up of committees: 

The New York convention of 1894 had thirty-one committees; 
the Virginia convention of 1901-02, sixteen; the Michigan conven- 
tion of 1907-08, twenty-nine; the Ohio convention of 1912, twenty- 
five. The Illinois convention of 1869-70 had thirty-nine commit- 
tees, a number much larger than was needed; of these committees, 
six made no report whatever to the convention.^ 

For a convention there may be said to be three types of com- 
mittees: 1, those on the formal business of the convention, such as 
committees on rules, on printing, etc.; 2, those whose functions 
are largely technical, such as a committee on arrangement and 
phraseology; 3, those whose function would be largely that of 
obtaining agreement upon broad questions of principle, such as 
might be to a large extent a committee dealing with the subject 
of municipal home rule. Of course, most committees will have 
duties of all three types, but some difference in size is justified. 
Committees of the first type should naturally be small; those of 
the second type may well be larger, but even for the third type 
committees having many more than nine members are not apt 
to work very effectively. The average size of committees in the 
Illinois convention of 1869-70 was nine. The average size of 
committees in the Ohio convention of 1912 was seventeen, and 
because of this the committee work was less effective than it 
might have been.^ 

In the Michigan convention of 1907-08 the first committee ap- 
pointed was one on permanent organization and order of business. 
This committee was afterward made permanent. It reported 
the plan of committee organization, and made other reports during 
the session of the convention. One of its recommendations, which 
was adopted, provided for a weekly meeting of chairmen of com- 
mittees, to be presided over by the president of the convention, 
"at which meeting the chairmen of the several committees shall 
report progress and consider such other matters as may be of 
interest in advancing the work of the convention." Such a plan, 
if properly carried out should do much to unify the work of a 
Convention.^ 

The committee on arrangement and phraseology should serve in 
large part as a central drafting organ to give unity to the work 
of the convention.* 

1 N. Y. Revision of Consts., p. 63. 2 n. y. Revision of Consts., p. 64. 

3 N. Y. Revision of Consts., p. 69. * n. y. Revision of Consts., p. 69. 



INTERNAL PROCEDUEE 177 

Separate committees will also be necessary to deal with questions 
which are at the time of great popular interest, because an effort 
will naturally be made to have these subjects dealt with in the 
constitution. For example if a convention were assembled in 
Illinois today it would be almost necessary to have separate com- 
mittees upon the liquor traffic, taxation, the initiative and referen- 
dum, and apportionment and minority representation,^ 

The following are the more important committees common to 
three of the most recent constitutional conventions: Arrange- 
ment and Phraseology, Banks, Corporations, Counties and 
Towns, Education, Suffrage, Judiciary, Bill of Rights, Leg- 
islature, Methods of Amendment, Miscellaneous, Municipal 
Government, Rules, Submission and Address, Taxation.^ 

Committees are of course organs of the convention, appointed 
for the purpose of maturing matters for consideration by that body, 
A committee should therefore at all times be subject to control by 
a majority of the convention, and should have no power (by failing 
to report upon any matter) to prevent its consideration by the 
convention.^ 

The committee must do the detailed work of the Convention, 
and each committee should have before it as soon as possible all of 
the proposals relating to the subject which it is to consider. In 
order to accomphsh this purpose, some conventions have definitely 
agreed that after a certain day no proposals should be entertained, 
unless presented by one of the standing committees.'* 

Many convention rules have very properly prescribed the form 
in which the proposals should be introduced, requiring that all 
proposals be in writing, contain but one subject, and have titles.^ 

A convention may undoubtedly incur expense for its legiti- 
mate needs. We have already seen that a convention can 
pledge the faith of the State for the expense of hiring a hall,^ 
But it is a far cry from pledging the faith of the State to 
pledging the credit of the State. Thus, although the attempts 

^ N. Y. Revision of Consts., p. 63. 

2 Journal, Mich. Conv. 1907-1908, Vol. I, p. 15; Journal, Ohio Conv. 1912, 
p. 41; Rev. Record, N. Y. Conv. 1915, Vol. I, pp. 49-52. 
^ N. Y. Revision of Consts., p. 64. 
* N. Y. Revision of Consts., pp. 66-67. 
^ N. Y. Revision of Consts., p. 67. 
^ See p. 173, sufra. 



178 CONSTITUTIONAL CONVENTIONS 

of the earlier conventions to appropriate money were success- 
ful/ they have been uniformly unsuccessful in later years/ and 
the attorneys general of three States have ruled against the 
legality of such a proceeding.^ Nevertheless, the legislature, 
when called on, has never failed to make the necessary appro- 
priations to meet the expenses incurred by the convention.^ 

Reverting now to the various proper objects of expenditure. 
A convention undoubtedly has power to supply its members 
with stationery, and probably with newspapers.^ Jameson has 
the following valuable suggestions to make, relative to the 
stenographic reports and printing for the convention: 

The same principle applies to the case of phonographic reports 
and printing for the Convention. It would be a most niggardly 
policy which would refuse the expenditure necessary to the preser- 
vation of most full and accurate reports of its debates and proceed- 
ings. Upon this subject, however, there has been very great dif- 
ference of views in different Conventions. In many of the States, 
volumes have been published, containing both the journals and the 
debates of all their Conventions. In others, the subject seems not 
to have been regarded as of any consequence whatsoever; and 
what little has been preserved has been owing to the private enter- 
prise of the newspaper press. The result is, that the memorials 
of the most important public bodies ever assembled in those States, 
are often very meagre, and more often confused and inaccurate. 
Such a policy is " penny wise and pound foolish." In after years, 
when it has become impossible to replace what has been lost, more 
enlightened public opinion commonly finds cause to regret a paltry 
economy which deprives history of its most important data. It 
should be remembered, that our Conventions lay the foundations 
of States, many of which are to rival the greatness and glory of 
Rome, of England, and of France. In a hundred years from now, 
what treasures would they not expend, could they purchase there- 
with complete copies of their early constitutional records — docu- 

1 Pennsylvania (1837); Louisiana (1844 and 1864). Jameson, pp. 436-437. 

2 Illinois (1862); New York (1867); Georgia (1867 and 1877); Pennsylvania 
(1873). Jameson, pp. 437-438, 441-442, 444-446. But see p. 180, infra. 

3 Massachusetts (1779-80); United States (1787); Illinois (1862); New 
York (1867); Georgia (1877); Pennsylvania (1873). Jameson, pp. 435-436, 
438 415 446. 

4' Hon. J. H. Martindale of New York in 1867; Hon. R. N. Ely of Georgia 
in 1877; and Hon. Samuel E. Dimmick of Pennsylvania in 1873. Jameson, 
pp. 442, 445-446. 

^ Jameson, pp. 457-458. 



INTERNAL PROCEDURE 179 

merits standing to their several organizations in the same relation 
as would the discussions of those ancient sages who framed the 
Twelve Tables of the Roman law, to the Republic of Rome.^ 

The question of printing the proceedings of the Minnesota 
convention of 1857 came before the courts because Goodrich, 
the State printer, claimed that he was entitled, by virtue of his 
business, to do the printing, and obtained an injunction from the 
lower court to prevent Moore, the convention printer, from doing 
it. The Supreme Court said, in dissolving this injunction: 

But even had the legislature intended and attempted to claim 
and exercise the act of providing a printer for the constitutional 
convention, it would have been an unauthorized and unwarrant- 
able interference with the rights of that body. The admission of 
such a right in the legislature, would place the convention under its 
entire control, leaving it without authority even to appoint or 
elect its own officers, or adopt measures for the transaction of 
its legitimate business. It would have less power than a town 
meeting, and be incompetent to perform the objects for which it con- 
vened. It would be absurd to suppose a constitutional convention 
had only such limited authority. It is the highest legislative as- 
sembly recognized in law, invested with the right of enacting or 
framing the supreme law of the state. It must have plenary power 
for this, and over all of the incidents thereof. The fact that the 
convention assembled by authority of the legislature renders it in 
no respect inferior thereto, as it may well be questioned whether, 
had the legislature refused to make provision for calling a conven- 
tion, the people in their sovereign capacity would not have had the 
right to have taken such measures for framing and adopting a con- 
stitution as to them seemed meet. At all events there can be no 
doubt but that, however called, the convention had full control 
of all its proceedings, and may provide in such manner as it sees 
fit to perpetuate its records either by printing or manuscript, or 
may refuse to do either.^ 

And Ruling Case Law says: 

A constitutional convention has full control of all its proceed- 
ings, and may provide in such manner as it sees fit to perpetuate its 
record, either by printing or by manuscript.^ 

^ Jameson, p. 458. 

2 Goodrich v. Moore (1858), 2 Minn. 61, 66. 

3 6 R. C. L., § 17, p. 27. 



180 CONSTITUTIONAL CONVENTIONS 

The convention has equal control over other printing neces- 
sarily incidental to its business. As Jameson says: 

In relation to the printing for the Convention, the case is very 
clear. If the Act calling the body provides for it, or requires it to 
be done in a particular manner or by a designated person, or limits 
it in amount or in cost, doubtless the Act should be obeyed. But, 
unless thus restricted, the power of the body to order its printing 
to be done, is as undoubted as to engage a hall or the requisite 
executive officers. The only alternative is, the employment of 
secretaries enough to furnish written copies of all papers and docu- 
ments used in the course of its business. This would be possible, 
and such provision would, after a sort, answer the purpose. But 
it is certain, that the measures proposed would be neither so well 
understood nor so rapidly matured, if thus presented, as if they 
were printed. To this may be added, that the expense of printed 
would be much less than of written copies, and that the length 
of the session would probably be reduced by the use of them. The 
employment, then, of printed matter, being clearly within the 
power of the Convention, as incident to the speedy and con- 
venient execution of its commission, the extent of it rests in the 
discretion of that body, and it can bind the government, within 
reasonable limits, by its contracts therefor.^ 

A further important consideration is the power of the conven- 
tion to maintain order and punish for contempt. Jameson 
doubts the power of the Sergeant-at-Arms of the convention to 
be anything more than a mere doorkeeper.^ But that really is a 
subsidiary question depending on what power the convention 
itself has to enforce order. Jameson says: 

The power of a Convention to discipline its own members for 
offences committed in its presence is undoubted, and of considerable 
extent. The order and dignity of public deliberative bodies may, 
in many ways, be so assailed as seriously to interfere with the 
progress of business, if not wholly to interrupt it, yet without the 
commission of any misdemeanor for which the offenders would be 
amenable to the laws. A Convention, having no power to make 
laws giving the magistrates jurisdiction of such offences, unless it 
could, by sanctions of its own, enforce its rules for the preservation 
of order, it would be at the mercy of such members as chose to do 
the work of violence, but to do it in such a manner as to elude the 
penalties for a breach of the peace. To prevent this is the princi- 

^ Jameson, p. 460. ^ Jameson, pp. 456-457. 



INTERNAL PROCEDURE 181 

pal object of rules; and every public assembly, by its very nature, 
must have power to make and to enforce them in some modes 
appropriate to its own Constitution. To Conventions, however, it 
must be admitted, the range of sanctions is not very wide. For 
minor offences, it would be confined, probably, to reprimand, and 
for the more heinous, to expulsion from the body; or, in cases of 
actual violence to arrest and tradition to the public authorities. 
Power to this extent I conceive to be indispensable to the exist- 
ence of any deliberative assembly; and, without assuming the 
character of a legislature, with power to create and to invest offi- 
cers and tribunals with jurisdiction to punish offences, I can im- 
agine it possessed of no greater. The power to arrest an offender, 
in the case supposed of actual violence, would involve that of 
safely keeping, and, if necessary, of confining him until he could 
be delivered to the officers of the law. So, the power to expel a 
member would carry with it that of suspending, which is less, or of 
suspending with forfeiture of pay, temporarily or altogether, ac- 
cording to the degree of the offence. But the power could not be 
claimed, in the former case, to imprison as a punishment, or for a 
longer time than should be necessary to secure the arrested member 
until he could be transferred to the magistrates, on complaint 
regularly made; or, in the latter, to pass from a forfeiture of pay 
(if that be regarded as allowable) to the imposition of pecuniary 
mulcts.^ 

Many convention acts expressly give to conventions the 
power to expel members and punish its members and officers by 
imprisonment or otherwise. The Georgia convention of 1867 
expelled a member for insulting the president of that body.^ 

The report of the Judiciary Committee to the New York con- 
vention of 1894 asserts that a convention has the power of 
expulsion.^ 

The power of a convention to discipline strangers is a differ- 
ent question. Jameson denies this power, because of his desire 
to belittle conventions in comparison with legislatures, for the 
purpose of the main thesis of his book, namely legislative su- 
premacy over conventions. Thus Jameson says: 

As a Convention is not a legislature, though a body, by dele- 
gation, exercising some legislative functions, but of so limited and 
subordinate a character as to entitle it to rank only as a legislative 

^ Jameson, pp. 463-464. 

^ Jameson, p. 466. 

3 Rev. Record, N. Y. Conv. 1894, pp. 267-269. 



182 CONSTITUTIONAL CONVENTIONS 

committee, it cannot do, even for its own defence, acts within the 
competence only of a legislature, or of a body with powers of defi- 
nite legislation.^ 

But in view of the modern theory that a convention is a legis- 
lative body of superior standing to the ordinary legislature,^ 
it would appear that a convention would have at least the same 
degree of powers in this particular as is inherent in inferior 
legislative bodies.^ 

The Illinois convention of 1862 appointed a committee to in- 
vestigate charges against certain of its members, with power to 
send for persons and papers and to swear witnesses.^ The 
Louisiana convention of 1864 caused a newspaper editor to be 
arrested and brought before it for contempt for publishing 
certain criticisms of the president and other members of the 
convention. In this they had the assistance of the Federal 
Department Commander and the Federal Provost Marshal. 
General Banks released the editor, however, before the contempt 
proceedings were completed.^ 

Various convention acts have contained provisions expressly 
authorizing conventions to discipline strangers.^ The author 
knows of no case in which this has been done, however, either 
with or without the express authority of the convention act. 

In all the foregoing discussion the author has assumed the 
absence of anything in any popular statute, restricting or en- 
larging the powers and duties of the convention. The conven- 
tion has certain express powers and certain powers implied from 
the inherent nature of the body, all of which are delegated to it 
by the people in their sovereign capacity. No constitution ex- 
cept that of the Federal government can restrict the people in 
delegating to a convention or in withholding from a convention 
any powers that they choose.^ Therefore the language of any 
convention act, provided it be passed by the people, should 
be carefully consulted upon the question of determining the 
powers of any particular convention. 

One very important power of the convention has been re- 

^ Jameson, p. 461. 

2 See p. 90, supra. 

3 Jameson, pp. 466-467. See 36 Cyc. 851 on the contempt and other powers 
of legislatures. 

^ Jameson, pp. 468-470. ^ Jameson, pp. 470-472. 

fi Jameson, pp. 472-473. '' See pp. 165-168, supra. 



INTEENAL PEOCEDURE 183 

served for the last, and that is the power of the convention to 
reconvene after the election (to which it submits its proposed 
changes in the constitution), in order to make and promulgate 
a codification of the constitution. The convention act which 
created the Kentucky convention of 1890 provided that, before 
any changes in the constitution should become operative, they 
should be submitted to the voters of the State and ratified by a 
majority thereof. Proposed changes were ratified by a popular 
vote in April, 1891. The convention reconvened in September, 
1891, to which date they had adjourned, and made numerous 
changes in the constitution, some of which were claimed to 
have been material, and promulgated the codified instrument. 
An efi^ort was made to enjoin the printing and preservation of 
this constitution, but the Court of Appeals recognized as valid 
the constitution promulgated by the convention.^ It is prob- 
able that the court was influenced by the extreme practical con- 
venience of enabling a convention to make a codification of the 
instrument after the adoption of changes by the people. 

The convention which framed the original constitution of Mas- 
sachusetts assumed that it had a similar power, although no such 
power had been granted it by the convention act. The conven- 
tion act provided that the constitution should not take effect un- 
less ratified by a two thirds vote of the people.^ The convention, 
however, desiring to secure an acceptable constitution, provided 
that the instrument which it drew should be voted on, article by 
article, by the people of the State, and that in any town where a 
majority voted against an article, the town meeting should sug- 
gest what changes would render that article acceptable. 

In order that the said Convention, at the adjournment, may 
collect the general sense of their constituents on the several parts 
of the proposed Constitution: And if there doth not appear to be 
two thirds of their constituents in favour thereof, that the Con- 
vention may alter it in such a manner as that it may be agreeable 
to the sentiments of two thirds of the voters throughout the State.^ 

This power of altering was not exercised, for it appeared from 
the returns that two thirds of the voters were in favor of the 
instrument as drawn; and it was accorduigly promulgated by 

1 Miller v. Johnson (1892), 92 Ky. 589. 

2 Journal, Mass. Conv. 1779-1780, p. 6. 

3 Journal, Mass. Conv. 1779-1780, p. 169. 



184 CONSTITUTIONAL CONVENTIONS 

the convention without change.^ But the assumption by the 
convention of its power to make changes after submission is an 
important precedent. A fortiori would a convention have the 
power to codify the constitution without making any changes. 

An alternative method of procedure would be for the con- 
vention to submit on the ballot a proposition authorizing the 
convention, or a committee thereof or some other body, to 
codify the constitution as amended at that election, and to 
promulgate the codification. 

The legislature of Maine, in submitting various amendments 
in 1875, submitted a proposition that the Chief Justice of the 
Supreme Court should have power to codify the constitution, 
by including amendments then adopted and all prior amend- 
ments, and by striking out all obsolete matter. This proposition 
was accepted by the voters and was accordingly followed by the 
Chief Justice, with the result that the constitution of Maine 
was brought up to date and put into a much more workable 
form than formerly .^ 

Similarly a convention might submit to the people an or- 
dinance authorizing itself to make such a codification, although 
it would probably have power to do this without such au- 
thorization, particularly in States where the convention pro- 
cedure is extraconstitutional rather than constitutional. 

The importance of such a power of codification is not to be 
overlooked. 

Thus we see that a convention ordinarily has full control over 
its internal affairs, including its own membership, the filling of 
vacancies, the obtaining of quarters, the election of ofiicers and 
employees, the establishment of rules, the purchasing of sup- 
plies, the printing of records, etc., the maintenance of internal 
order, and even the disciplining of strangers; but these powers 
may be enlarged or curtailed by popular vote. 

The convention's control over the process of submitting its 
work for popular ratification will be discussed in a later chapter.^ 
Its power to pass necessary incidental legislation has already 
been discussed.^ 

1 Journal, Mass. Conv. 1779-1780, pp. 186-187. 

2 Thorpe, Vol. Ill, p. 1646, n. a. 

3 See pp. 196-213, infra. « See pp. 146-147, supra. 



Chapter XV 
STATUS OF DELEGATES 

The most important questions relative to the status of dele- 
gates to a convention are as follows: Are they public officers 
and should they take an oath to support the existing consti- 
tution? 

First, as to whether the delegates are public officers. This 
question arose in the Illinois convention of 1862 under a pro- 
vision of the then constitution of that State,^ which provided 
that judges of certain courts should not be eligible to any other 
office, or public trust, of profit, during the term for which they 
were elected or for one year thereafter. One of the delegates 
had been a judge of one of these courts within one year prior 
to his election to the convention. His competitor contested 
his election on this ground. On the part of the judge, it was 
contended that the words of the constitution referred to the 
distribution of powers by the constitution to the three regular 
branches of government, to neither of which did the conven- 
tion belong. Even the fact that the convention was authorized 
by the constitution was immaterial, for the constitution 
merely provided a means for the people to exercise their un- 
doubted right to hold a convention and did not prescribe the 
qualifications of delegates, as it did those of judges, members of 
the legislature, and members of the executive department. If' 
the constitution had regarded the members of the convention 
as State officers, it would certainly have contained provisions 
prescribing their qualifications, the time and mode of their elec- 
tion, and their powers and duties. 

In behalf of the contestant, no great claim was made that a 
seat in the convention was a public office, but it was contended 
very strongly that it was certainly a position of public trust of 
the greatest magnitude. The convention, however, decided 

1 Art. V, § 10. 



186 CONSTITUTIONAL CONVENTIONS 

to permit the judge to retain his seat.^ Jameson differs with this 
conclusion in the following language: 

In my judgment, there can be but little doubt, that a member of 
a Convention is, in the enlarged and proper acceptation of the 
term, an "officer" of the State. ... A Convention is a part of the 
apparatus by which a sovereign society does its work as a political 
organism. It is the sovereign, as organized for the purpose of 
renewing or repairing the governmental machinery. That same 
sovereign, as organized for the purpose of making laws, is the 
legislature; as organized for the purpose of applying or carrying 
into effect the laws, it is the judiciary or the executive. These 
successive forms into which the sovereign resolves itself, are but 
systems of organization having relation more or less directly to 
the government of the society. Together, they constitute the 
government.^ 

The position of delegate to the Illinois convention was un- 
doubtedly a position of public trust, and even a public office; 
but was not, if we regard such conventions as extraconstitu- 
tional, a position under the constitution. When a constitution 
refers to the incompatibility of offices, such provisions should 
be construed as relating solely to positions under the constitution 
itself and not to apply to any other positions unless clearly so 
stated. 

Attorney-General Attwill in a recent opinion to the Massa- 
chusetts legislature, reaches the same results, but on different 
grounds : 

I have come to the conclusion, with some hesitation, that the 
position of delegate in the convention is not an office of the 
Commonwealth. 

Whatever may be said in relation to a member of the Legislature, 
he at least takes part in the execution of one of the powers of gov- 
ernment, whereas a delegate in the convention acts substantially 
as one of a committee of the people, whose power is restricted to 
making a report to the people. 

The whole purpose of the convention) is to take under con- 
sideration the propriety of revising or altering the present Con- 
stitution, and to report back to the people such revision, altera- 
tion or amendment as it may propose. Its powers are similar to 
that of a committee, its work is entirely preliminary, and it has 
no power to do any act which of itself has any final effect. 

1 Jameson, pp. 317-318. ^ Jameson, pp. 319-320. 



STATUS OF DELEGATES 187 

It is my view that the word "office," as used in article VIII 
of the Amendments, refers to a position the incumbent of which 
exercises some power of government, and not to the position of a 
person selected to act in an advisory capacity in framing a scheme 
or change of government to be submitted to the people for adop- 
tion or rejection.^ 

It does not appear necessary to debase the convention in 
this way in order to reach his conclusion. It would be sufficient 
to hold that the word "officer" in the constitution means 
constitutional officer. Mr. AttwiU had, however, debarred him- 
self from using this ground by his theory (expressed earlier 
in the same opinion) that the convention is a constitutional 
proceeding.^ 

Let us next take up the question of oaths of members. 
Jameson says: 

The question whether the members of a Convention should be 
sworn before entering upon their duties, has been variously an- 
swered in different Conventions. Of the whole number whose pro- 
ceedings have been accessible to me, about one half only have 
administered an oath. These were the following Conventions: 
those of Pennsylvania, 1776; North Carolina, 1835; New Jersey, 
1844; Missouri, 1845; Ilhnois, 1847 and 1862; California and 
Kentucky, 1849; Ohio and Indiana, 1850; Iowa and the two 
Minnesota Conventions, in 1857; and Maryland, in 1864. On 
the other hand, an oath was not administered in the following Con- 
ventions: Maryland, 1776 and 1850; Tennessee, 1796 and 1834; 
Virginia, 1829 and 1850; Pennsylvania, 1789 and 1837; New York, 
1821 and 1846; Massachusetts, 1779, 1821, and 1853; Michigan, 
1850; Wisconsin, 1847; and Louisiana, 1812, 1844, and 1852. 
In those Conventions in which an oath has been administered, 
the most common form has been substantially that used by the 
Illinois Convention of 1847, which was as follows: "You do sol- 
emnly swear, that you will support the Constitution of the United 
States, and that you will faithfully discharge your duty as dele- 
gates to this Convention, for the purpose of revising and amending 
the Constitution of the State of Ilhnois." That administered in 
Maryland, in 1864, beside the foregoing, contained an oath of 
allegiance to the government of the United States. A more re- 
stricted form was employed in the Cahfornia Convention of 1849, 

1 1917 Mass. House Doc, 1711. Compare Atty. Gen. v. TiUinghast (1909), 
203 Mass. 539, 543. 2 ggg pp. 43-45^ supra. 



188 ■ CONSTITUTIONAL CONVENTIONS 

and in the Minnesota Republican Convention of 1857, namely: 
"You do solemnly swear that you will support the Constitution 
of the United States." 

In several of the Conventions in which an oath has been ad- 
ministered, opposition has been made either to taking any oath 
at all, or to taking one in the form proposed by the Convention, 
or prescribed by the Act under which it assembled. 

It has been urged that no oath was necessary or proper; that 
if the Convention was a mere committee, with powers only of pro- 
posing amendments, it was a useless ceremony to bind it by oaths 
to do or not to do acts which it could do only on the hypothesis 
that it possessed a power of self-direction inconsistent with its 
supposed character; that it was even dangerous so to do, as involv- 
ing an admission that, without an oath or some positive prohi- 
bition, it would have power, and perhaps be at liberty, to act 
definitively. On the other hand, if the Convention was an em- 
bodiment of the sovereignty of the State or nation, empowered to 
pull down and reconstruct the edifice of government, as freely as the 
sovereign could itself do, were it possible for it to act in person 
and directly, then an oath would be doubly futile, since it could not 
fetter a power that was practically unlimited and uncontrollable. 

In reply to this, however, it has been forcibly urged that, if not 
necessary, it is proper that a body like a Convention, intrusted with 
important public duties, should deliberate under the obligation 
of an oath; that it could do no harm, and might operate to re- 
strain members from doing, for selfish or partisan ends, that by 
which the interest of the people at large might be jeopardized. 
This would become more apparent, when it was considered that 
an oath derives its efiicacy more from its tendency to remind the 
taker of his obligation to a higher power, than from any liability 
the taking of it may impose upon him to punishment for perjury. 

What form of oath should be used has, however, been more 
frequently the subject of dispute than whether any oath was 
proper. In Conventions to frame State Constitutions, assuming 
that an oath is to be administered at all, it is generally conceded 
to be proper that it should embrace an undertaking to be faith- 
ful and obedient to the Constitution of the United States. This 
could not well be contested, since the State Constitutions are, by 
the terms of the Federal charter, to be valid only when conform- 
able to its provisions. It is also generally admitted to be proper, 
if an oath be taken at all, that the members should be sworn hon- 
estly and faithfully to perform their duties as members of the Con- 
vention. A question of more difficulty is, whether the oath should 



STATUS OF DELEGATES 189 

contain a clause to support the Constitution of the State. This 
question has been raised in several Conventions, and has been 
uniformly decided in the negative. The reasonings of the op- 
posite parties upon this question have been based on their 
respective conceptions of the nature and powers of a Convention. 
Those who have opposed taking the oath have done so on the 
ground, that to do so would be inconsistent with their duties as 
members of a Convention; that they were deputed by the sov- 
ereign society to pull to pieces, or, as some have expressed it, 
"to trample under their feet," the existing Constitution, and to 
build up instead of it a new one; that to take an oath to support the 
Constitution of the State, would be to swear that they would not 
perform the very duty for which they were appointed.^ 

Among the conventions which have raised the question and 
refused to take the oath are those of Louisiana in 1844, Ohio in 
1850, Iowa in 1857, and Illinois in 1862 ^ and 1869. 

In the last two instances, the convention act required an 
oath to support the constitution of the State. The convention 
of 1862 struck out the words "of the State," and the convention 
of 1869 accomplished the same result by adding after them the 
words "so far as its provisions are compatible with and appli- 
cable to my position," thus recognizing the principle that the 
convention was extraconstitutional.^ 

Similar recognition was given by the Virginia convention of 
1901-1902. The then existing constitution required all State 
officers to take an oath to support the State constitution. It 
was argued that delegates to the convention were not officers, 
and accordingly the oath was not taken.^ 

The constitutions of Colorado, Illinois, and Montana expressly 
provided that delegates to conventions must take an oath to 
support both Federal and State constitutions.^ There is no 
record of the applicability of this provision ever having been 
questioned. 

In North Carolina the legislature in 1835 and 1875 placed 
restrictions upon what the conventions should do, and provided 
that no delegate should be permitted to take his seat until he 
should take an oath to observe such restrictions. In these 
cases the oaths were objected to, but were taken, and the 

^ Jameson, pp. 280-282. ^ Jameson, p. 282, n. 1. 

3 Jameson, p. 284. * Bodd, p. 81, n. 16. 

5 "Columbia Digest," p. 28. 



190 CONSTITUTIONAL CONVENTIONS 

restrictions were observed.^ A similar oath, required by legis- 
lative act, was taken by the delegates to the Georgia con- 
vention of 1833.^ The same plan was followed by the Louisiana 
legislature of 1896, and the restrictions were substantially 
observed by the convention which assembled in that State in 
1898.^ The Louisiana act of 1896 had been submitted to and 
approved by the people, as had also the act calling the North 
Carolina convention of 1835.^ The Louisiana convention of 
1898 expressly recognized the popular statute as binding upon 
it, and the same view is found in a dictum of the Louisiana 
Supreme Court.^ It would seem that such of these conventions 
as were called merely by the legislature® might, had they 
thought proper, have declined to take the oaths, and have 
organized and proceeded to act without doing so, just as was 
done by the Illinois convention of 1862,^ 

As we have seen, the question of taking an oath to support 
the State constitution has been decided in the negative wherever 
it has been raised, with the single exception of North Carolina, 
in which State it had been the people who had required the 
oath. This would seem to be a reasonable decision, based on 
the superiority of the convention to the constitution. It would 
be a strange anomaly to require a superior to take oath to obey 
an inferior. 

Similarly there is a bit of an anomaly for the legislature and 
the Governor, after taking an oath to support the existing 
constitution, to then provide for the holding of a convention 
for the overturning of that instrument in a manner unauthorized, 
or even impliedly or expressly prohibited, by it. Yet this may 
be justified by arguing that as an oath to support the State 
constitution does not bind the taker to commit treason against 
the United States, neither does it bind him to forswear his 
primary allegiance to the people. 

From all the foregoing we see that convention delegates are 
not officers under the existing constitution, even in the case of 
a convention apparently authorized by that instrument, and 
that it would be extremely anomalous for them to take an oath 

1 Dodd, p. 81. 2 2)odd, p. 81. 3 j)Qdd, p. 81. 

« Dodd, p. 81, n. 15. 

5 Dodd, p. 81, n. 15; La. Ry. Co. v. Madere (1909), 124 La. 635, 642. 

6 North Carolina (1875); Georgia (1833). 

7 Dodd, p. 81, n. 15. 



STATUS OF DELEGATES 191 

to support the State constitution; although they ought to swear 
to support the constitution of the United States and faithfully 
and impartially to perform the duties of their position. 

It may be useful now to append a few remarks in relation to 
the question of privileges, as applicable to Conventions. Are the 
members of a Convention, or is the body itself, entitled to claim 
the immunities usually accorded to the legislature, and to its 
individual members, such as exemption from legal process, from 
service as jurors or witnesses, or from legal question tending to 
impair the freedom of their debates and proceedings? It is doubt- 
less essential, in order to enable a legislature, or any other public 
assembly, to accomplish the work assigned to it, that its members 
should not be prevented or withdrawn from their attendance, by 
any causes of a less important character; but that, for a certain 
time at least, they should be excused from obeying any other call, 
not so immediately necessary for the welfare or safety of the State; 
they must also be always protected in the exercise of the rights of 
speech, debate and determination in reference to all subjects upon 
which they may be rightfully called to deliberate and act; it is 
absolutely necessary, finally, that the aggregate body should be 
exempted from such interferences or annoyances as would tend 
to impair its collective authority or usefulness. The immunities 
thus indispensable are, in the case of legislatures, commonly 
secured by rules and maxims or constitutional provisions, and are 
styled privileges, as being rights or exemptions appertaining to 
their office, to which citizens generally are not entitled. 

Out of the catalogue of privileges above given, it is not easy to 
select one with which a Convention or its members could safely 
dispense. It ought never to be, as without them it would frequently 
be, in the power of the enemies of reform to prevent or postpone 
it by arresting, harassing or intimidating the delegates to the body 
by whom it is to be accomplished. But the real difficulty is, not to 
determine whether or not a Convention ought to enjoy those 
privileges, but to ascertain how and by whom they should be pro- 
tected and enforced. 

Upon this point, there is, in my judgment, but one position 
that can be maintained with safety, and that is, that Conventions 
must stand upon the same footing with jurors and witnesses; they 
must look to the law of the land and to its appointed administrators, 
and not to their own powers, for protection in their office. If a 
juror or a witness, going or returning, is harassed by arrest, he does 
not himself or with his professional associates cite the offending 
officer before him for punishment, but sues out a writ of Habeas 



192 CONSTITUTIONAL CONVENTIONS 

Corpus, and on pleading his privilege procures his discharge. 
Beside this, for personal indignity or injury, he may appeal to the 
laws for pecuniary compensation. The same course is doubtless 
open to any member of a Convention, and it furnishes for all 
ordinary cases a practical and sufficient remedy. Behind those 
bodies stands continually, armed in full panoply, the state, with 
all its administrative and remedial agencies, ready to protect and 
defend them.^ 

Various convention acts declare expressly the privileges and 
the immunities of the delegates. 

Thus it appears that the delegates, although "officers," 
are not "officers" within the meaning of the constitution. They 
need not take an oath to support the State constitution unless 
required to do so by a popular statute. They have similar 
privileges and immunities to those enjoyed by members of the 
State legislature and jurors, but should look to the courts to 
enforce them. 

^ Jameson, pp. 473-474. 



Chapter XVI 
SUBMISSION OF AMENDMENTS 

Of the original constitutions of the thirteen colonies, only 
those of New Hampshire and Massachusetts were formally 
submitted to a vote of the people, although in several other 
instances an informal canvass was made. The Vermont con- 
stitution of 1786 and the Georgia constitution of 1789 were 
ratified by different bodies from those that framed them, 
these second bodies being chosen by a direct vote of the people 
for that purpose. The New Hampshire constitution of 1792, 
the Connecticut constitution of 1818, and the Maine constitution 
of 1819 were submitted to a popular vote. New York followed 
in 1821. The popular submission of constitutions first developed 
in New England, largely, it would seem, because there alone 
the people had in their town meetings workable instruments 
for the expression of popular sentiment upon such a question.^ 
This policy soon became general, although it received a setback 
in the South during the Civil War, doubtless because of fear 
of the negro vote. Most of the reconstruction constitutions 
were voted on by the people, although secessionists were ex- 
cluded from voting. Since 1890 fourteen State constitutions 
have been adopted. Seven of these were submitted to a vote 
of the people; six were adopted without submission; and one, 
that of Kentucky in 1891, was altered by the convention after 
it had received the popular approval.^ 

Dodd says: 

In view of the facts discussed above, I think that it is impossible 
to assert, as Judge Jameson did, that the submission of a con- 
stitution to a vote of the people is imperatively required by some 
customary constitutional law of this country, or even to say that 

1 Bodd, pp. 62-64. 

2 Z)o(^d, pp. 64— 67. Arizona and New Mexico submitted to the people in 1910. 
Louisiana in 1913 did not. 



194! CONSTITUTIONAL CONVENTIONS 

a legislature in calling a convention may effectively bind such 
a body to submit its work for the approval of the people. We are, 
then, forced to the conclusion, that at present the only rules posi- 
tively binding a convention to submit its constitution to the people 
are those contained in the constitution which the convention may 
have been called to revise. Of the thirty-four state constitutions 
which contain provisions regarding constitutional conventions, 
seventeen require that constitutions framed by such conventions 
be submitted to the people. As has been suggested, however, all 
of the states, with the exceptions just referred to, have followed 
the same rule since 1840. Of only two states — Delaware and 
Mississippi — may it be said that the practice is opposed to a 
convention's submitting the results of its labors to a vote of the 
people.^ 

There are no recorded instances of a convention refusing 
to submit the fruit of its labors to the people when required 
by express constitutional provision. There have been instances, 
however, In which conventions have disobeyed similar express 
requirements of the convention act. But, If a: convention act 
voted on by the people acquires from this vote a supraconsti- 
tutlonal force,^ It would seem that Its provisions ought to be 
even more binding than those of the constitution. 

In Virginia, In 1901, the question of holding a convention 
was voted upon by the people as required by the constitution 
of 1870; and the subsequent legislative act authorizing the 
convention provided that the constitution framed by It should 
be submitted to a vote of the people. However, the conven- 
tion did not submit its constitution, largely. It would seem, 
for fear of Its being defeated by the elements to be disfran- 
chised. In combination with Interests adversely affected by the 
new constitution.^ The general sentiment of the bar of the 
State was that the second act, not having been voted on by 
the people, was not binding upon the convention.^ 

The Illinois convention of 1847 declared one article of the 
constitution to be In force without submission to the people, 
although the convention act (purely legislative in Its character) 
required the submission of all amendments.^ 

1 Bodd, pp. 68-70. 2 gee pp. 55-56, supra. 

3 Bodd, p. 68. 

4 VII "Va. Law Reg.," 100. 

6 111. Laws 1846-1847, Act of Feb. 24, 1847, Sec. 6; lU. Const. 1847, 
Schedule, Art. 4. 



SUBMISSION OF AMENDMENTS 195 

These really are the only instances of conventions disregard- 
ing the convention act in this respect, although Dodd also cites 
that of the Kentucky convention of 1890-1891.^ This case 
however, falls under the implied power of a convention to codify 
and perfect its constitution after ratification by the people,^ 
for the Kentucky convention did obey the requirement that 
it should submit its constitution to the people. But even if we 
consider this case as an instance of disregard of the convention 
act, it may be differentiated because of the fact that the Ken- 
tucky act was the creature of the legislature alone and hence 
might properly be disregarded by the convention. Both the 
Kentucky and Virginia courts recognized these constitutions 
as valid; basing their recognition, however, on popular acquies- 
cence rather than on the validity of the proceeding itself.^ 

The provision for popular submission contained in a con- 
vention act which has not been voted on by the people has, 
nevertheless, been declared by the Pennsylvania Supreme Court 
to be binding, on the ground that the people elected their 
delegates under the act, relying on its terms. The court said: 

When the people voted under this law, did they not vote for 
delegates upon the express terms that they should submit their work 
to the people for approval? Did not every man who went to the 
polls do so with the belief in his heart that, by the express con- 
dition on which his vote was given, the delegates could not bind 
him without his subsequent assent to what the delegates had done? 
On what principle of interpretation of human action can the servant 
now set himself up against the condition of his master and say the 
condition is void? Who made it void? Not the electors; they voted 
upon it.^ 

We have already seen that it is the general custom to submit 
constitutional changes to the people, even when not required 
by the express terms of the convention act. In fact, there have 
been expressions of opinion to the effect that the action of an 
extraconstitutional convention has no validity until ratified by 
a popular vote. Thus Ruling Case Law says: 

» Dodd, p. 68. 

2 See pp. 182-184, supra. 

3 Taylor v. Commonwealth (1903), 101 Va. 829; Miller v. Johnson (1892), 92 
Ky. 589. 

4 Wells V. Bain (1872), 75 Pa. 39, 52. 



196 CONSTITUTIONAL CONVENTIONS 

The new constitution prepared by a convention derives its 
force from the action of the people and not from that of the legis- 
lature which may have issued the call for the constitutional con- 
vention.^ 

Judge Morton of the Massachusetts Supreme Court said, 
in the Massachusetts convention of 1853 : 

If the people choose to adopt what we submit to them, it then 
becomes authoritative — not because it comes from a legally 
constituted body, but because the people choose to adopt it.^ 

But both of these proceeded upon the theory that it was 
the legislature alone which called the convention. If that be 
true, then certainly the work of the convention must be sub- 
mitted to the people, in order to give the convention any 
standing at all. 

Having discussed the question of necessity of submission, we 
next come to the question of time of submission. When the 
determination of the time for submission has been left to the 
convention, has the legislature the power to change it? The 
Lecompton controversy in Kansas arose on just this point. 
The convention, which was pro-slavery, arranged for the 
submission of two alternative forms of its constitution at an 
election to be held in December, 1857. Thereupon the free- 
state legislature, which convened four days before the date set 
for this election, voted to submit the constitutions in January. 
Only slavery men participated in the first election and only 
free-staters in the second, with the result that the most pro- 
slavery of the two constitutions was carried in December, and 
both were rejected in January. No decision was reached as 
to which was the valid action, for President Buchanan and the 
national Senate deadlocked with the national House on the 
question.^ 

For the legislature to change the time for submission, if the 
time was set by the people, would amount to an illegal attempt 
at amending the convention act; ^ and regardless of the source 

1 6 R. C. L., § 17, p. 27. 

2 Deb. Mass. Conv. 1853, Vol. I, p. 75. 

* For a fuller discussion, see pp. 103, 116, supra. 
^ See pp. 97-104, supra. 



SUBMISSION OF AMENDMENTS 197 

of the act, would amount to an illegal attempt to restrict the 
convention.^ 

A somewhat similar question, however, arose more recently 
in New Hampshire. The question involved was as to the time 
of taking effect of the amendments proposed by the convention 
of 1889. The Supreme Court held that although this question 
..was a matter primarily for the legislature, yet as the conven- 
tion had acted and issued an ordinance decreeing that the 
amendments should take effect when voted on, the amendments 
had so taken effect, and it was thereafter too late for the legis- 
lature to change the date. This opinion, although delivered in 
1889, was not published in the New Hampshire reports until 
1911.^ This same opinion points out that the practice in New 
Hampshire has been for the legislature to delegate to the con- 
vention the legislative power of determining when the amend- 
ments should take effect. If no time were fixed, the amendments 
would take effect upon their ratification. 

A Constitution, or an amendment, takes effect on the day of 
its adoption by the people, unless otherwise provided in the exist- 
ing Constitution, or by the Convention acting under legislative 
authority.^ 

When the time for submission is prescribed by the conven- 
tion act, can the convention change the time? This must needs 
be within the inherent powers of a convention, even though the 
convention act be popular rather than legislative. Otherwise, 
the whole procedure might come to nought because of a tech- 
nical restriction. Such restrictions are directory rather than 
mandatory, the main object being submission to the people 
at some time, rather than submission at any particular time or 
not at all. Thus the New York convention of 1867 sat beyond 
the time fixed by the convention act for its work to be sub- 
mitted to the people, for the simple and compelling reason that 
its work had not then been completed.^ 

The Michigan convention of 1907-1908 was required by a 
purely legislative convention act to submit its constitution 
at the April election of 1908. The convention decided to sub- 
mit at the November election of that year, and by mandamus 

1 See pp. 105-116, supra. ^ Opinion of Justices (1889), 76 N. H. 612. 

2 Jameson, p. 545j n. 1. * Dodd, p. 82. 



198 CONSTITUTIONAL CONVENTIONS 

forced the Secretary of State to recognize that the convention 
and not the legislature was the master.-^ 

The next question to be considered is: Need the convention 
submit its constitutional changes en hlocf That this question 
should arise at all is probably due to the idea that there is some- 
thing inherently different between a new constitution and an 
amended constitution. But as the Supreme Court of Rhode 
Island has well said: 

Any new constitution, therefore, which a convention would 
form', would be a new constitution only in name; but would be 
in fact our present Constitution amended. It is impossible for us 
to imagine any alteration, consistent with a republican form of 
government, which cannot be effected by specific amendment as 
provided in the Constitution.^ 

But in spite of this, there have been a number of adverse 
expressions of opinion, which can all, however, be traced to a 
misconception of the famous opinion of the justices of the 
Massachusetts Supreme Court of 1833.^ Thus Dodd erro- 
neously says: 

The Massachusetts judges thought that there was no power to 
adopt specific amendments except in the manner provided by the 
constitution, but did not express any opinion upon the question 
whether a convention might be called for a general constitutional 
revision; their opinion cannot therefore be cited in support of 
the view that a convention may not be called for a general revision 
without constitutional authorization, and such a convention was 
in fact held in Massachusetts in 1853.^ 

Yet what the Massachusetts Supreme Court really said was 
this : 

The court do not understand that it was the intention of the 
House of Representatives to request their opinion upon the 
natural right of the people in cases of great emergency, or upon 
the obvious failure of their existing constitution to accomplish 
the objects for which it was designed, to provide for the amendment 
or alteration of their fundamental laws; nor what would be the 

1 Carton v. Secy, of State (1908), 151 Mich. 337, 338-339. 

2 Opinion of Justices (1883), 14 R. I. 699, 654. 

3 Opinion of Justices (1833), 6 Cush. 573. 
« Dodd, p. 45. 



SUBMISSION OF AMENDMENTS 199 

effect of any change and alteration of their Constitution, made 
under such circumstances and sanctioned by the assent of the 
people. Such a view of the subject would involve the general 
question of natural rights, and the inherent and fundamental 
principles upon which civil society is founded, rather than any 
question upon the nature, construction, or operation of the existing 
constitution of the Commonwealth, and the laws made under it. 
We presume, therefore, that the opinion requested applies to the 
existing constitution and laws of the Commonwealth, and the 
rights and powers derived from and under them. Considering the 
questions in this light, we are of opinion, . . . that, under and 
pursuant to the existing Constitution, there is no authority given 
by any reasonable construction or necessary implication, by which 
any specific and particular amendment or amendments of the 
Constitution can be made, in any other manner than that pre- 
scribed in the ninth article of the amendments adopted in 1820.^ 

Jameson construes the phrase " specific and particular amend- 
ment or amendments" as follows: 

The force of these quotations may be better apprehended by 
considering what the Convention meant by a "specific amend- 
ment." Undoubtedly it meant an amendment which had been 
distinctly formulated in its terms in the public mind, and one of 
which the necessity had been generally acknowledged, in contra- 
distinction from a change, indeterminate in its character and 
extent, which might be shown to be advisable upon a revision of 
the whole Constitution. A specific amendment, being a definite 
proposition, might safely be submitted to the people to pass upon, 
yes or no; for it required no modification to adjust it to possible 
changes in other parts of the same instrument. Not so with an 
indeterminate amendment, to be matured by discussion, and after 
multiplied adjustments, and which might turn out to be a single 
proposition, or a few simple propositions, or a completely new 
Constitution. For such a work only a Convention is adapted. 

Recurring, then, to the question whether, where a Constitu- 
tion contains no provision for amendments save in the legislative 
mode, a Convention can be called, the answer must be, both upon 
principle and upon precedent, that a Convention can be called, 
certainly when, a revision of the whole Constitution is desired, to 
determine what amendments, if any, are needed, or, if deemed 
advisable, to frame a new Constitution. In general, whenever a 
Convention is called, the intention is to authorize a revision of 

^ Opinion of Justices (1833), 6 Cush. 573, 574. 



200 CONSTITUTIONAL CONVENTIONS 

the entire Constitution, though upon its meeting, the result of its 
labors may be only to recommend specific amendments.^ 

The phrase "specific and particular amendment or amend- 
ments" is the exact phrase used in the amending clause of the 
present Massachusetts constitution. It is a technical phrase of 
Massachusetts constitutional law and means no more or less 
than the mere word "amendment." It has always been so 
recognized in that State, as is shown by the fact that every 
attempt to establish a new method of constitutional amend- 
ment has always used the whole phrase. Thus, according to 
Jameson's interpretation and to the practice in Massachusetts, 
any definite constitutional change, from the establishment of 
a complete new constitution down to the changing of a mere 
comma would be a specific and particular amendment. 

The real distinction drawn by the Massachusetts Supreme 
Court was not between single amendments and a general re- 
vision of the constitution, but was between constitutional and 
extraconstitutional methods of revision. The Supreme Court 
very decidedly does not refer to the extraconstitutional method 
as consisting only in a general revision of the constitution, but 
on the contrary refers to it as "the amendment or alteration 
of their fundamental laws" and as "any change and alteration 
of their constitution." That this is the view held by constitu- 
tional lawyers in Massachusetts is seen by the following quota- 
tion from a very recent local law article: 

It was assumed in the opinion, that the opinion requested ap- 
plies to the existing constitutions and laws of the Commonwealth 
and the rights and powers derived from and under them, and did 
not depend upon the natural right of the people in cases of great 
emergency, or upon the obvious failure of their existing constitu- 
tion to accomplish the objects for which it was designed, to provide 
for the amendment and alteration of their fundamental laws.^ 

It is also seen from the fact that the voters of Massachusetts, 
in calling the convention of 1917, voted on the question: 
"Shall there be a convention to revise, alter or amend the con- 
stitution of the Commonwealth?"^ The affirmative vote on 

^ Jameson, pp. 614-615. 

2 Arthur Lord in II "Mass. Law Quarterly," 1, 24. 

3 Mass. Gen. St. 1916, c. 98, § 1. 



SUBMISSION OF AMENDMENTS 201 

this question clearly authorized the convention to submit sep- 
arate amendments. So also the convention act provides: 

Any such revision, alterations or amendments, when made and 
adopted by the said convention, shall be submitted to the people 
for their ratification and adoption, in such manner as the conven- 
tion shall direct.^ 

The use of the word "amendments" in the plural shows that 
the submission of separate amendments was within the contem- 
plation of the act, and the convention is authorized to use its 
discretion in this matter by the words "in such maimer as the 
convention shall direct." 

The convention to be held in Indiana in 1918, although called 
for the purpose of framing an entire constitution, is expressly 
authorized by the convention act to submit any question sep- 
arately.^ 

The only real distinction between a general revision and revi- 
sion by separate amendments is that the constitutional conven- 
tion would be too expensive unless there were a lot of changes 
to be made. As Judson says: 

The convention is a very proper form of organization for fram- 
ing a complete constitution. It is, however, obviously too cumber- 
some and expensive a thing for mere amendment, unless, indeed, 
the amendment in question should be of extraordinary impor- 
tance.^ 

Dodd takes the same view in the following language: 

The discussion heretofore has been based upon the general 
view that constitutional conventions are employed for the com- 
plete revision of state constitutions or for the framing of new con- 
stitutions, and that, where a general revision is not desired, the 
regular legislative machinery is used to initiate specific amend- 
ments. This view is, in the main, correct. Yet of course a con- 
stitutional convention when assembled may not make a general 
revision but may simply propose specific amendments. In the 
state of New Hampshire specific amendments may only be pro- 
posed by a convention. However, where only a few changes are 

1 Mass. Gen. St. 1916, c. 98, § 6. 

2 Ind. 1917 Senate Bill 77, § 1. 

3 Judson, Essentials of a Written Const., p. 14. 



202 CONSTITUTIONAL CONVENTIONS 

desired the convention is an expensive and cumbersome instru- 
ment which will not often be employed except in case of necessity. 
On the other hand several constitutions make no provision for a 
convention, and in Rhode Island the absence of such provision 
has been held to prevent the holding of a convention so that here 
the legislative process is the only one available for constitutional 
alteration. 

May not the legislative power of initiating amendments be used 
in such a manner as to propose a complete constitutional revision? 
This may be done where the legislature is not restricted as to the 
number or character of amendments which it may propose, but 
precedent is against the exercise of such power by a legislature, 
although in Rhode Island this is the only way of obtaining a com- 
plete constitutional revision. Two state legislatures have sub- 
mitted to the people revised constitutions in the guise of amend- 
ments, but in both cases the legislative revisions were rejected. 
The Michigan legislature submitted a revised constitution in 
1874, and the Rhode Island legislature submitted the same in- 
strument twice, in two successive years, 1898 and 1899. 

Judge Jameson has said as to the legislative method of propos- 
ing amendments. "It ought to be confined, it is believed, to 
changes which are few, simple, independent, and of comparatively 
small importance. For a general revision of a Constitution, or 
even for single propositions involving radical changes as to the 
policy of which the popular mind has not been informed by prior 
discussion, the employment of this mode is impracticable, or of 
doubtful expediency." Judge Jameson's point is purely one as to 
expediency, and it is legally proper, it would seem, in the absence 
of specific constitutional restrictions, to propose to the people by 
the legislative process any constitutional alteration short of a 
complete revision, or even a complete revision.^ 

The subsidiary question he touched on, namely the power of 
the legislature to submit a whole constitution in the regular 
legislative method for submitting amendments, should be dis- 
tinguished from the question of the power of the legislature to 
submit a whole constitution, acting like a constitutional con- 
vention, which latter question was discussed in an earlier 
chapter.^ 

Reverting to the question of separate submission, we find that 
Jameson presents a strong argument in favor of separate sub- 
mission: 

1 Dodd, pp. 258-261. ^ Chapter VI, swpra. 



SUBMISSION OF AMENDMENTS 203 

A Constitution may be wholly new, or it may be an old one re- 
vised by altering or adding to its material provisions. It may, 
also, in a hundred separate subdivisions, contain but a fourth of 
that number of distinct topics, or each subdivision may be sub- 
stantive and independent. It is obvious that the submitting body, 
weighing accurately the public sense, may determine whether the 
whole Constitution must stand or fall as a unit, or whether some 
parts, being adopted and going into effect without the rest, the 
new system would be adequate to the exigencies of the state, and 
may submit it as a whole or in parts accordingly. But it is perfectly 
clear that every distinct proposition not vital to the scheme as a 
whole, or to some other material part, ought to be separately sub- 
mitted. If it were not nearly impracticable, the best mode would 
be to submit every distinct proposition separately, so that each 
voter could vote yes or nay upon it, regardless of anything but its 
absolute propriety.^ 

Nevertheless it is true that 

In far the larger proportion of the cases in which submission 
has been made, it has been of the instruments entire. This was 
naturally true, in general, of all such as were the first constitutions of 
their respective States. 

The earliest departure from this mode was in Massachusetts, in 
1780, in which the Frame of Government and Bill of Rights were 
both submitted in such a way as to enable the people to reject 
the whole or any part of either, ... a course followed by all the 
subsequent Conventions in that State, though the Act calling the 
Convention of 1820 left it to the discretion of that body to de- 
termine the mode in which the submission should be made. The 
example set by Massachusetts in 1780 was followed by New Hamp- 
shire in 1791, and in the subsequent revision in 1850. The Acts 
calling the New York Conventions of 1821 and 1846 required 
those bodies to submit their proposed amendments to the people, 
together or in distinct propositions, as to them should seem expedi- 
ent. Accordingly, the Convention of 1821 provided that they 
should be submitted "together, and not in distinct parts;" and 
that of 1846, expressing the opinion that the amendments it pro- 
posed could not be prepared so as to be voted on separately, sub- 
mitted them en masse excepting one, that relating to "equal 
suffrage to colored persons," which was submitted as a separate 
article. Under a similar discretion, the Pennsylvania Convention 

' Jameson, pp. 531-532. 



204 CONSTITUTIONAL CONVENTIONS 

of 1837 submitted its amendments en masse. The Illinois Con- 
vention of 1847 and 1862, and the Oregon Convention of 1857, 
pursued a course similar to that of the New York Convention of 
1846, submitting the great body of their respective Constitutions 
entire, but a few articles relating to slavery, to the immigration of 
colored persons, the public debt, and other subjects considered of 
doubtful policy, separately.^ 

In 1820 a convention act was vetoed in New York, for the 
following reason, among others: 

Because the bill contemplates an amended Constitution, to be 
submitted to the people to be adopted or rejected, in toto, with- 
out prescribng any mode by which a discrimination may be made 
between such provisions as shall] be deemed salutary and such as 
shall be disapproved by the judgment of the people. If the people 
are competent to pass upon the entire amendments, of which there 
can be no doubt, they are equally competent to adopt such of them 
as they approve, and to reject such as they disapprove; and 
this undoubted right of the people is the more important if the 
Convention is to be called in the first instance without a previous 
consultation of the pure and original source of all legitimate 
authority.^ 

The more recent constitutional conventions which have been 
held have proceeded in the following manner: 

The Michigan convention of 1907-1908 submitted a new 
constitution entire.^ The New Hampshire convention of 1912 
submitted twelve separate amendments of the old constitution.^ 
The Ohio convention of 1912 submitted forty-two separate 
propositions.^ The New York convention of 1915 submitted a 
new constitution and two additional separate propositions.^ 

See the following quotations on methods of submission: 

Conventions may submit separate amendments to be voted on 
by the people one by one or all together.' 

^ Jameson, p. 533. 

3 Journal, Mich. Conv. 1907-1908, Vol. II, pp. 1502-1533. 
« Journal, N. H. Conv. 1912, pp. 562-564. 

5 Journal, Ohio Conv. 1912, pp. 1050-1073. 

6 Rev. Record, N. Y. Conv. 1915, Vol. IV, p. 4335. For a list of earlier in- 
stances see Dodd, p. 259, n. 243. 

^ McClure, "State Const. Making," p. 351. 



SUBMISSION OF AMENDMENTS 205 

It lies in the discretion of a convention ordinarily as to whether 
its work shall be submitted : 1, in the form of separate amendments 
to an existing constitution; 2, as a complete new constitution; or 
3, as a new constitution, but with separate provisions which may 
be voted upon independently.^ 

Thus we may conclude that a constitutional convention may 
submit its changes in whatever form it considers best adapted to 
ascertain and accomplish the will of the people. 

A related question is the power of the convention to enlarge 
or reduce the electorate to which it refers the amendments. 
Some constitutional provisions and convention acts are specific 
on this point. Thus the act for the holding of the Indiana con- 
vention of 1918 provides that the "new constitution shall be 
submitted to the legal voters of the state of Indiana to be by 
them ratified or rejected." ^ Another act of the same session 
extended the vote in this connection to women.^ 

On the other hand, the act for the holding of the Massa- 
chusetts convention of 1917 merely provides that the amend- 
ments "shall be submitted to the people for their ratification 
and adoption, in such manner as the convention shall direct." ^ 

In cases where the constitution has been held to apply to a 
convention, it has been held that neither the legislature nor the 
convention has a right to prescribe other qualifications than 
those set forth in the constitution.^ 

Where the constitution does not apply, however, Dodd has 
pointed out that 

In most of the cases in which constitutional pro"VTlsions regard- 
ing the suffrage have not been observed, there has actually been a 
widening of the suffrage . . . with reference to the vote for dele- 
gates to a convention, and . . . with reference to the popular 
vote upon a proposed constitution.^ 

In many of the cases cited by Dodd the change was made by 
the legislature rather than by the convention, but even these 

1 N. Y. Revision of Consts., p. 71; Dodd, p. 258, n. 243. 

2 Ind. 1917 Convention Act, § 1. 

3 Ind. 1917 Senate Bill 77, § 1. 

* Mass. Gen. St. 1916, c. 98, § 6. The Supreme Court of Massachusetts has 
ruled (Senate Doc. 512 of 1917) that this means submission to those entitled to 
vote for certain State officers. 

6 Green v. Shumway (1868), 39 N. Y. 418, 426. 

6 Dodd, p. 58, n. 60. 



206 CONSTITUTIONAL CONVENTIONS 

serve to illustrate the inapplicability of the constitutional qualifi- 
cations of voters. 

The convention which framed the original constitution of 
Massachusetts extended the right of suffrage beyond that pre- 
scribed by the charter then in force. The charter said : 

Provided alwayes that noe Freeholder or other Person shall have 
a Vote in the Eleccon of Members to serve in anyj Greate and 
Generall Court or Assembly to be held as aforesaid who at the time 
of such Eleccon shall not have an estate of Freehold in Land within 
Our said Province or Territory to the value of Forty Shillings 
per Annu at the least or other estate to the value of Forty pounds 
Sterl'.i 

And the constitution framed by the convention increased 
these qualifications fifty per cent as follows: 

And at such meetings every male inhabitant of twenty-one 
years of age and upwards, having a freehold estate within the 
commonwealth, of the annual income of three pounds, or any es- 
tate of the value of sixty pounds, shall have a right to give in his 
vote for the senators for the district of which he is an inhabitant.^ 

Nevertheless, the various towns, on the recommendation of 
the legislature, permitted all adult freemen to vote for delegates; 
and the convention, following the same recommendation, chose 
the adult freemen as the electorate to represent the people, in 
passing upon the proposed constitution. 

It may be well to give a tabulation of some instances in which 
the electorate has been altered for the purpose of voting on 
constitutional changes : 

In the following case the legislature plus the electorate ex- 
tended the electorate: New York (1821).^ 

In the following, the legislature alone did the extending: 
New Jersey (1844),^ Rhode Island (1841 and 1842) .^ 

In one case the convention did so, acting with assent of both 
legislature and electorate: Massachusetts (1780).^ 

1 Thorpe, Vol. Ill, pp. 1878-1879. 

2 Mass. Const., Ch. I, § II, Art. II. Similarly as to other officers. 

3 Laws of N. Y., 1821, c. 90. 

4 Laws of N. J. 1843-1844, p. Ill; Bott v. Secy, of State (1898), 62 N. J. L. 
107, 121, 123-124. 

6 Mowry, The Dorr War, pp. 119-120, 283. 
® See above on this page. 



SUBMISSION OF AMENDMENTS 207 

In two cases the convention did so, with the assent of the 
legislature: Virginia (1830)/ Illinois (1869) .2 

In the following, the convention on its own initiative ex- 
tended the electorate: Louisiana (1845 and 1852),^ Michigan 
(1835),4 Texas (1845),^ Virginia (1851),« West Virginia (1863),^ 
Tennessee (1834),« Kansas (1859),^ Arkansas (1868 V° 

Two of these conventions reduced the electorate in some par- 
ticulars as well as extending it in others: Tennessee (1834),^^ 
and Arkansas (1868) .^^ 

Electorates have also been reduced by oaths of allegiance re- 
quired by reconstruction acts, and by the following conventions: 
Maryland (1864), Missouri (1865), New York (1867).i3 Such 
oaths have been held to be ex post facto laws, when required as a 
condition precedent to holding office or pursuing certain lines 
of business.^^ But, as voting is not a property right, it is to be 
doubted if the principle of these cases would be extended to pro- 
hibit the application of the same restriction to voters. 

The Supreme Court of Missouri has, in the following lan- 
guage, sustained the validity of the ordinance of the conven- 
tion of 1865, which reduced the electorate to those who could 
take the test oath: 

As the representatives ot the people, clothed with an authority 
so ample as that, certainly its power to prescribe the means by 
which it was thought best to ascertain the sense of the qualified 
voters of the State upon that instrument cannot be seriously ques- 
tioned. The ordinance had in itself every element necessary to give 
it legal force and effect, and was therefore binding upon the voter.^^ 

The Justices of the Supreme Court of Massachusetts have, 
however, recently given an opinion which apparently holds that 
the electorate prescribed by the constitution for voting for cer- 
tain mentioned offices and on amendments submitted by the 

1 Va. Acts, 1828-1829, c. 15; Thorpe, Vol. Ill, p. 3825. 

2 111. Act, Feb. 25, 1869; Thorpe, Vol. II, p. 1047. 

3 Thorpe, Vol. Ill, p. 1410; Vol. Ill, p. 1428. 
* Thorpe, Vol. IV, p. 1942. 

6 Thorpe, Vol. VI, p. 3566. « Thorpe, Vol. VII, p. 3850. 

^ Thorpe, Vol. VII, p. 4011. s Thorpe, Vol. VI, p. 3441. 

9 Thorpe, Vol. II, p. 1259. i" Thorpe, Vol. II, p. 330. 

" Thorpe, Vol. VI, p. 3441. 12 Thorpe, Vol. II, p. 330. 
^^ Jameson, p. 522. 

" Cummings v. Missouri (1866), 4 Wall. 277, 318. 
15 State V. Neal (1868), 42 Mo. 119, 123. 



208 CONSTITUTIONAL CONVENTIONS 

legislative method is the only electorate which can vote under 
the convention method. 
They first say: 

The validity and powers of this convention are not necessarily 
Involved in these questions. Without discussing that subject, we 
are of opinion that ... if the convention to revise and alter the 
Constitution is held under the Constitution, etc. 

This is their premise, assumed by them merely for the pur- 
poses of argument; doubtless because they rightly felt that, if 
the convention is authorized by some ea^ifraconstitutlonal power, 
they, the justices of the court, being constitutional officers, 
would have no right to pass upon any questions involved. Act- 
ing on the foregoing premise, namely, that the convention is 
held under the constitution, which however they refuse to de- 
cide, the justices say: 

The Constitution of Massachusetts in its original form defined 
the qualifications of the electorate. Chapter 1, Section II, Ar- 
ticle II; Chapter 1, Section III, Article IV. These qualifica- 
tions have been modified by Articles III, XVII, XX, XXVIII, 
XXXI and XXXII of the Amendments. The words of the Con- 
stitution as It now stands are "Every male citizen of twenty-one 
years of age and upwards, excepting paupers and persons under 
guardianship, who shall have resided within the Commonwealth 
one year, and within the town or district In which he may claim 
a right to vote six months next preceding any election . . . shall 
have a right to vote" for governor and other officers. Although 
these provisions in express terms relate only to the qualifications 
of voters for the elective officers therein named, it Is a necessary 
and Imperative implication that these electors and these only can 
be treated as qualified to vote to change the Constitution. The 
words "quahfied voters" as used in Article IX of the Amend- 
ments, wherein are the provisions for amendments to the Con- 
stitution, mean the voters qualified according to the requirements 
of the Constitution. It is an essential and inevitable limitation 
upon the power vested in the legislative body of a state estab- 
lished by a written Constitution that It cannot provide for the 
revision or change of the frame of government except in a lawful 
and orderly method and by the body of electors determined ac- 
cording to the terms of that frame of government. The "people" 
who have a right to vote upon any essential aspect of that revision 
and change, either for members of the convention or the acceptance 



SUBMISSION OF AMENDMENTS 209 

or rejection of its work, are the people who have a right to vote 
for state officers and upon state questions, namely, the voters as 
described by the Constitution itself. It is elementary that the 
existing Constitution continues in full force and effect until changed 
or destroyed by act of the sovereign people. It seems indisputable 
that there is no power under the Constitution, except the sover- 
eign people acting in accordance with their self-imposed, limiting 
methods of procedure, to enlarge the electorate so as to include as 
voters persons not eligible to vote upon amendments to the exist- 
ing Constitution. . . . The Legislature can proceed only under 
the Constitution. It would be contrary to its duty to that Con- 
stitution to provide for its revision or alteration by a body of elec- 
tors, whose qualifications were different from those ascertained by 
the terms of that Constitution. The power of the Legislature to en- 
act that women may be members of or vote for local or other 
subordinate boards of officers (See Opinio7is of Justices, 115 Mass. 
602; 136 Mass. 578) is of a different character. The existence of 
that power touching officers created by the Legislature affords no 
basis for argument that like power exists to change the electorate 
established by the Constitution for state affairs.^ 

In opposition to this opinion, it may be argued as follows: 
First, the court is proceeding upon a premise which is rather 
questionable, and on the validity of which the court is therefore 
wise in refusing to pass, namely, that the constitution author- 
izes a popular convention.^ 

Secondly, the court assumes, as its second premise, that the 
constitution of Massachusetts establishes an "electorate for 
state affairs"; whereas it is arguable from an inspection of 
that instrument itself, that the electorate which it establishes 
relates merely to the election of certain specified State officers, 
and possibly to the ratification of amendments submitted by 
the legislature.^ The theory that the constitution, by pre- 
scribing an electorate for certain officers, thereby impliedly 
prescribes the same electorate for all State affairs, may well 
be a violation of the principle of , construction of instru- 
ments, that the express mention of one thing amounts to 

1 Mass. 1917 Senate Doc. 512. 

^ See pp. 45, 50, supra. 

* Mass. Const., Amendments III, XVI, XVII, and possibly IX. The 
Justices themselves say, in this very opinion : " these provisions in express 
terms relate only to the qualifications of voters for the elective officers therein 
named." 



210 CONSTITUTIONAL CONVENTIONS 

an implied exclusion of all else.^ This opinion of the Massa- 
chusetts court, if carried to its logical conclusion, would render 
invalid the partial suffrage laws, whereby in many States women 
may, by legislative act, vote for such State officers as are not 
expressly mentioned in the constitution,^ which laws have 
been held valid in actual litigation.^ 

Thirdly, the court ignores all of the instances in which, with 
uniform success, legislatures and conventions have enlarged or 
reduced the electorate.^ Is it not arguable that, if there had 
been any doubt of the legality of such changes, it would have 
been raised in the courts before this? 

Fourthly, thecouvt's opinion is sustainable upon another ground 
than that mentioned by them, namely, upon the ground that 
the legislature cannot amend what the people have enacted.^ 

For these reasons, we may well wait for a decision by the 
Massachusetts court in a litigated case,^ before concluding that 
this is their final view on the subject. The last above reason 
suggests a related ground on which the court might have based 
its opinion, and which if valid, would bar the convention from 
changing the electorate, although it would not have barred the 
inclusion of such a change in the original act. The ground is, 
that the voters, in adopting the act, used the term "people" 
in its commonly accepted sense of "voters," and that this use 
of the word is binding both on the legislature and the conven- 
tion. But on the other hand, it is equally arguable that this 
word was used in the light of the many precedents in which 
conventions have picked what electorate should represent the 
people. 

Jameson discusses, as follows, the alteration of the electorate 
by a convention: 

^ This legal maxim reads: " Expressio unius est exclusio alterius." It is 
possible to construe the recent Massachusetts opinion as changing it to read: 
"Expressio unius est inclusio omnium aliorum." 

2 111. Laws of 1913, p. 333; Ind. 1917 Senate Bill 77; Ohio Act of 1917; 
Michigan Act of 1917; Rhode Island Act of 1917; Nebraska Act of 1917; North 
Dakota Act of 1917. 

^ " The Constitution refers only to elections provided for by that instrument." 
Scoivn V. Czarnecki (1914), 264 111. 305, 312; approved in People v. Militzer 
(1916), 272 111. 387, 392. 

* See the instances given immediately supra. 

^ See pp. 97-104, supra. 

6 Woods V. Wohurn (1915), 220 Mass. 416, 418; Young v. Duncan (1914), 
218 Mass. 346, 351, and cases therein cited. 



SUBMISSION OF AMENDMENTS 211 

Of these, the largest proportion were cases in which submission 
was made to the electors jplus certain designated classes of per- 
sons previously not entitled to vote at such elections, and the 
residue, of cases in which submission was made to the electors 
minus certain classes of persons thus entitled, according to existing 
laws. 

In most of these cases the effect was, on the whole, doubtless to 
increase the existing electorate. In five of them the Convention 
Acts expressly authorized the Conventions to submit in the man- 
ner described, but in the residue no such authority was given or 
pretended. 

It is evident that in these cases, a new principle was introduced, 
namely, that of submitting proposed changes in the fundamental 
law to persons other than the body entrusted with the electoral 
function under existing laws ; in some cases, to citizens forming no 
part of the existing governmental system; in others, to a part 
only of the citizens comprised in that system. Such a submission, 
especially when made to persons not forming a part of the exist- 
ing electorate, it is conceived, was not only a novelty but a capital 
innovation, upon wliich might hang, for the States concerned, 
the most weighty consequences; and, unless the principles which 
ought to govern in the enactment of fundamental laws are miscon- 
ceived, it was unconstitutional and in the highest degree dangerous.^ 

But the uniform success of such electoral changes shows 
that, even if unconstitutional, they are nevertheless valid and 
effective. Besides, there is no reason to suppose that a matter 
not covered by the constitution, and which the constitution 
probably could not control if it tried,^ can be unconstitutional. 

The Indiana constitution does not provide for the holding 
of conventions, but does provide that only males shall vote on 
proposed constitutional amendments. Nevertheless, the legis- 
lature has decreed that women may vote on the constitutional 
amendments which may be submitted by the coming con- 
vention,^ thus clearly showing that the opinion in that State 
is to the effect that general constitutional provisions relative 
to the qualifications of voters do not apply to amendments 
submitted by an extraconstitutional convention. 

^ Jameson, pp. 516-517. 

2 See pp. 50-52, 166-167, supra. 

3 Ind. Const., U, 2; Ind. 1917 Senate Bill 77. 



212 CONSTITUTIONAL CONVENTIONS 

An objection is sometimes made that if the convention has 
the power to enlarge the electorate in order to get a better 
expression of pubHc opinion, they have an equal power to reduce 
the electorate; and this is urged in support of the theory that 
they have no power to tamper with the electorate at all; but 
this argument can be met by quoting the following passage 
from the Constitution of the United States: 

The right of citizens of the United States to vote shall not be 
denied or abridged by the United States, or by any state, on 
account of race, color, or previous condition of servitude.^ 

As to method of submission we have already seen that an 
extraconstitutional convention has the power, after the sub- 
mission of changes to the people, to reconvene and codify the 
new constitution.^ The manner of conducting the election at 
which the amendments are submitted is usually entrusted by 
the convention act to the convention. And in this connection, 
the convention has the power to pass all necessary incidental 
legislation.^ But where the legislature attempts to prescribe 
the method, there is at least one decision to the effect that 
the legislative provisions are binding, particularly when ratified 
by the people. 

The power claimed for the convention is, by ordinance, to raise 
a commission to direct the election upon the amended constitution, 
in the city of Philadelphia, and to confer power on this commission 
to make a registration of voters, and furnish the lists so made 
to the election officers of each precinct; to appoint a judge and two 
inspectors for each division, by whom the election therein shall be 
conducted. This ordinance further claims the power to regulate 
the qualifications of the officers thus appointed to hold the election 
and to control the general returns of the election. It is clear, there- 
fore, that the ordinance assumes a present power to displace the 
election officers now in office under the election laws for the city, 
to substitute officers appointed under the authority of the con- 
vention, and to set aside these election laws so far as relates to 
the qualification of the officers and the manner in which the general 
returns shaU be made, and in other respects not necessary to be 
noticed. The authority to do this is claimed under the fiith section 

1 U. S. Const., Amendment XV, § 1. 

2 See pp. 182-184, supra. 
^ See pp. 146-147, supra. 



SUBMISSION OF AMENDMENTS 213 

of the Act of 1872, giving the convention power to submit the 
amendments, at such time or times, and in such manner as the 
convention shall prescribe, subject, however, to the limitation as 
to the separate submission of amendments contained in this act. 
It is argued that the manner of submission confers a power to 
conduct the election upon the matter submitted. To state the propo- 
sition is to refute it, for the manner of submitting the amend- 
ments is a totally different thing from conducting the election 
upon the submitted amendments.^ 

But the question was really one of the power of popular, 
rather than of legislative, control. 
One final suggestion: 

When the work of a convention is submitted, it would be desir- 
able to have mailed to each voter the text of proposals, together 
with explanations. For a populous state this would be expensive, 
but the expense would justify itself .^ 

From all the foregoing, we may deduce as follows: In the 
absence of popular restrictions on the convention, or in the 
presence of authorization to determine the manner of sub- 
mission, the general authority of the convention over the 
manner of submission will include the date of the election, the 
election officials, the time at which the amendments shall take 
effect and even the choice of the particular electorate who 
shall be employed by the convention to represent the will of 
the people. The right to determine when the changes shall 
take effect includes the right to decree that they shall take effect 
when codified and promulgated by the reconvened convention. 

1 Wells V. Bain (1872), 75 Pa. 39, 53-54. 

2 N. Y. Revision of Consts., p. 72. 



Chapter XVII 

THE DOCTRINE OF ACQUIESCENCE 

One further matter deserves brief attention, namely, the 
question as to what gives vaKdity to constitutional changes 
adopted by the convention method. A mere lapse of time has 
been held to validate amendments adopted in violation of 
provisions of the existing constitution. Thus in 1894 the 
Supreme Court of Colorado refused to inquire into the validity 
of an amendment which had been in operation for ten years.^ 
In 1903 the Supreme Court of Nebraska refused to inquire into 
the validity of an amendment adopted sixteen years before.^ 
Dodd, however, says: 

Several expressions in the cases discussed above would raise 
the inference that an amendment might be secure from judicial 
attack simply because it had been long acquiesced in and uncon- 
tested. This view can hardly be a proper one. In the cases above, 
acquiescence was coupled with the fact that the amendments 
made essential changes in governmental organization, and such 
changes having been accomplished, were regarded as making the 
question a political one. But an amendment which did not make 
an essential change in the governmental organization — one the 
annulling of which would not disarrange the governmental ma- 
chinery — may, it would seem, be attacked as invalid at any time, 
just as a law acted upon perhaps for years as valid, may be then 
held unconstitutional by the court. Mere lapse of time raises no 
presumption in favor of the validity of either a law or amendment, 
but long acquiescence without contesting its validity may be 
considered as having weight in determining the question of con- 
stitutionality.^ 

Recently in North Dakota a mere custom of the Supreme 
Court, favorable to the tenure of the Judges themselves, was 

1 Neshit V. People (1894), 19 Col. 441, 455. 

2 Weston V. Ryan (1903), 70 Neb. 211, 218. 

3 Dodd, pp. 225-226. 



THE DOCTRINE OF ACQUIESCENCE 215 

held to have become ingrafted on to the constitution by mere 
lapse of time and acquiescence,^ 

In the case in which the Virginia convention of 1901 pro- 
mulgated a constitution without complying with the require- 
ment that it submit this constitution to the people, the court 
held: 

The Constitution having been thus acknowledged and accepted 
by the officers administering the government and by the people of 
the State, and being, as a matter of fact, in force throughout the 
State, and there being no government in existence under the con- 
stitution of 1869 opposing or denying its validity, we have no 
difficulty in holding that the Constitution in question ... is the 
only rightful, valid, and existing Constitution of this State, and 
that to it all the citizens of Virginia owe their obedience and loyal 
allegiance.^ 

Dodd says: 

Another reason why courts would hesitate to pronounce invalid 
a constitution which was already in operation is that a court 
acting under such constitution would, in rendering a decision of 
this character, necessarily pronounce against its own competence 
as a court. A court organized under a government, even though 
that government be revolutionary in character, has no greater 
validity than the government under which it acts, and would hardly 
destroy itself by holding that government to be invalid. This 
view was first presented by a dictum of Chief Justice Taney in 
Luther v. Borden, and may be said to be a sound one: "And if a 
state court could enter upon the inquiry proposed in this case, and 
should come to the conclusion that the government under which 
it acted had been put aside and displaced by an opposing govern- 
ment, it would cease to be a court, and be incapable of pronouncing 
a judicial determination upon the question it undertook to try." ^ 

And he adds that 

Courts must pursue a more liberal policy in passing upon the 
acts of a convention, especially after they have been approved by 

1 Linde v. Robinson (1917), 160 N. W. 512. 

2 Taylor v. Commonwealth (1903), 101 Va. 829, 831. And cf. Miller v. John- 
son (1892), 92 Ky. 589. 

3 Dodd, pp. 101-102. Cf. Brittle v. People (1873), 2 Neb. 198, 214; 
Loomis V. Jackson (1873), 6 W. Va. 613, 708; Koehler v. Hill (1883), 60 la. 
543, 608, 614; Luther v. Borden (1849), 7 How. 1, 40; "Trial of Dorr," p. 38. 
See pp. 157-158, supra. 



216 CONSTITUTIONAL CONVENTIONS 

the people, than it has [sic] pursued in interpreting the consti- 
tutional restrictions placed upon the legislative power to propose 
amendments.'^ 

If lapse of time and acquiescence by the people and govern- 
ment will give validity to constitutional changes made under 
the authority of the constitution, then a fortiori, as Dodd 
suggests, with respect to changes made by extraconstitutional 
means. 

If the reconvening of the Kentucky convention of 1890 was 
valid, although unauthorized by the convention act, and the 
constitution promulgated by it became the constitution of the 
State,^ this rather upsets a pretty little theory which might 
otherwise be deduced and which has been deduced by some 
writers on the subject. It has been said that any irregularities 
on the part of either the legislature or the convention are cured 
when the people accept the changed constitution at a regular 
election. In other words, that the object of the whole procedure 
is to submit amendments to the people, and that it matters not 
how legally this is done, so long as it is done. Judge Morton 
may have had this theory in mind when he said in the Massa- 
chusetts convention of 1853: 

Whether we sit legally or illegally, whether we are here by 
right or by usurpation, if the people choose to adopt what we sub- 
mit to them, it then becomes authority — not because it comes from 
a legally constituted body, but because the people choose to 
adopt it.^ 

But in the Kentucky case, there was no such curing sub- 
mission to popular vote, because in that case the unauthorized 
act was done by the convention after, rather than before, the 
special election. 

Thus we are forced to fall back on the theory that an amend- 
ment obtained by the convention method derives its validity 
not from the passage of the convention act by the legislature or 
its ratification by the voters, not from the election of the dele- 
gates to the convention, not from any action by the convention 
itself, and not even from the acceptance of the amendments 
by popular vote; but rather from the mere acquiescence in the 

^ Dodd, p. 103. ^ See p. 183, supra. 

3 Deb. Mass. Conv. 1853, Vol. I, p. 74. 



THE DOCTKINE OF ACQUIESCENCE 217 

result on the part of the old government and of the people at 
large. 

Thus amendment by extraconstitutional convention rests not 
on the submission of the amendment to the people, but rather 
on the submission to the amendment by the people. 

The Massachusetts Supreme Court in 1833 alluded to this 
"sanction by the assent of the people." ^ 

And it is clear that if President Tyler had not come to the 
rescue of the landlords of Rhode Island in 1841, by suppressing 
the People's Constitution with Federal troops,^ Thomas Wilson 
Dorr would have been seated as governor, and his constitution, 
unlawful though its inception, would have become the supreme 
law of Rhode Island through being sanctioned by the assent of 
the people. This was a purely spontaneous convention, but so 
also were the Union governments of Virginia and West Vir- 
ginia and the many successful conventions of the Revolutionary 
War. 

The following quotations support the doctrine of acquiescence, 
set forth in this chapter: 

Such irregularly enacted changes may, however, be ratified by 
the subsequent acquiescence of the People, as well as by their 
formal vote; and any act of the existing Government in recognition 
of such irregular constitutional changes should be regarded as such 
acquiescence and ratification by the people.^ 

If that instrument was valid, as the supreme law, it was be- 
cause the people had tacitly expressed their assent to it by electing 
officers under it, and by acquiescing in its provisions.* 

It will be inferred from the foregoing that the acquiescence 
which may give validity to an excessive exercise of power by a 
Convention must involve more than a mere affirmative vote of the 
qualified electors. These have no power to authorize or to condone 
a breach of constitutional duty; they can neither make nor repeal 
nor suspend the operation of a law. They are not "the people" 
in any case where they act without law or beyond the law. The 
acquiescence which ratifies or validates an act otherwise void is 
that of no single department or functionary, save as that depart- 
ment or functionary is supported by the consenting judgment of 

^ Opinion of Justices (1833), 6 Cush. 573. 
2 See pp. 21, 22, supra. 
s Braxton, VII "Va. Law Reg.," 79, 96-97. 
* Jameson, p. 519. 



218 CONSTITUTIONAL CONVENTIONS 

the sovereign whose voice it speaks. It is the acquiescence of the 
sovereign community, clearly manifest and continuous, that is 
alone effectual. As to the particular acts which are to manifest 
that judgment, or the length of time over which they should 
extend, no precise rule can be given. The most that can be said 
is, that when the sovereign body has clearly moved, and that move- 
ment gives evidence of irresistible force and of continuance, the 
various systems of officials, constituting the existing government, 
must heed and bow to it, or go down before it. Acquiescence, 
though silent and scarcely visible, is such a movement.^ 

The convention or congress which in its broadest sense made that 
constitution was assembled without sanction of law. It was com- 
posed of delegates elected at the instance of a committee of citi- 
zens . . . this body proceeded to frame and adopt a constitution, 
which was not submitted to the people for ratification . . . Never- 
theless, from the time that instrument was promulgated until 1844, 
it was the fundamental instrument of government of this state, 
submitted to by the legislative, executive and judicial departments 
of the government, and also by the people of this state, as having 
the force of a constitution.^ 

It has even been asserted that a popular refusal to call a new 
convention is a ratification of the old constitution: 

By the Act. No. 33 of an Extraordinary Session of the General 
Assembly, of this year, a proposition to hold a constitutional 
convention and adopt a new Constitution was submitted to the 
people, and was rejected by the electors voting in the election 
called for that purpose last August. This, in my humble opinion, 
was an express ratification of the Constitution of 1913.^ 

In spite of all the foregoing, we must remember that acqui- 
escence does not validate the means, but merely the result. 
Thus Jameson says: 

Before closing the discussion of the principles regulating the 
legitimate call of Constitutional Conventions, one remark is 
necessary to guard against misconstruction. A Constitution, or 
an amendment to a Constitution, originating in a Convention 
justly stigmatized as illegitimate, may, notwithstanding its 
origin, become vahd as a fundamental law. This may happen 

^ Jameson, pp. 541-542. 

2 Bott V. Secy, of State (1898), 62 N. J. L. 107, 118-119. 

s Foley v. Dem. Com. (1915), 70 So. 104, 105. 



THE DOCTRINE OF ACQUIESCENCE 219 

... by the mere acquiescence of the sovereign society. Such a 
ratification of the supposed Constitution or amendment would not, 
however, legitimate the body from whom the Constitution or 
amendment proceeded. That no power human or divine could do, 
because, by the hypothesis, such body was in its origin illegitimate 
. . . The ratification by the acquiescence of the sovereign, would 
be a direct exercise of sovereign power, illegal doubtless, but yet 
standing out prominently as a fact, as such finding in the original 
overwhelming power of the sovereign a practical justification, 
which it would be folly to gainsay.^ 

On the whole, we may conclude that acquiescence will validate 
an illegal constitution, and nonacquiescence will invalidate a 
legal constitution. Thus we revert in the end to fundamental 
principles, particularly the principle that all governments 
derive their just powers from the consent of the governed, 
rather than from any compliance with legal formalities. 

^ Jameson, p. 112. 



Chapter XVIII 
CONCLUSIONS 

What are the conclusions to be drawn from the discussion 
contained in this book? 

It has seemed best to the author to collect all these conclu- 
sions in a final chapter. In every case in which there is not a 
fair preponderance of precedent and authority in favor of any 
given conclusion, that fact will appear. So that the following 
represents a summary of the law of constitutional conventions. 



Written constitutions are an American institution, based 
upon the following four ideas: to wit, that charters of govern- 
ment should be in writing, that there exist certain inherent 
rights which should be asserted in these charters, that these 
charters should be superior to mere statutes, and that these 
charters are contracts between each citizen and the whole 
State.^ 

The convention, as a distinct body for the framing or altera- 
tion of constitutions, was originated in America during the 
Revolutionary War.^ 

Since then there have gradually developed two leading 
methods of amending constitutions: ^. e., by the regular legis- 
lature (now possible in every State except New Hampshire), 
or by a convention (now possible in every State except Rhode 
Island); in either case, almost always requiring a submission 
of the proposed changes to the people.^ 

In twelve States, amendment is now possible by direct popu- 
lar initiative, without the interposition of either the legislature 
or a convention.^ 

* See pp. 1-2, supra. ^ See pp. 2-8, swpra. 

^ See pp. 8-10, swpra. * See p. 9, supra. 



CONCLUSIONS 221 

II 

Government In America is based upon the theory of popular 
sovereignty; the people governing through representatives.^ 

The term "the people" means the people as organized into 
the State, rather than as a collection of individuals.^ 

All persons, men and women, infants and adults, comprise 
"the people." ^ 

The people can speak only through their authorized repre- 
sentatives, the legal voters. Therefore the term "the people" 
is often used to mean the mouthpieces of the people.^ 

These, in turn, can represent the people only at an election 
duly called and held. It is only at such an election that the 
minority can be bound by the action of the majority; and the 
non-voters be bound by the action of those who vote.^ 

When a part of the people, or even a majority of them, 
act outside the forms of law, they have no right to bind 
the rest.^ 

The people have the right to change their form of government 
at will, using whatever method suits them.'' 

This is a fundamental right, which constitutions are power- 
less to deny, restrict, or limit as to method.^ 

The people may exercise this right in any one of three ways: 
(1) by some authorized procedure; (2) by a lawful act represent- 
ing the whole people; or (3) by acquiescing in a spontaneous 
act of a part of the people.^ 

An authorized procedure is one which has the sanction of 
Congress in the case of a territory, or of the constitution in the 
case of a State.-^° 

An extraconstitutional movement for the alteration of the 
constitution, derives its validity from the inherent power of the 
people.^^ 

A spontaneous movement becomes effective only by subse- 
quent popular acquiescence, produced usually by force. ^^ 

With respect to the constitutionality of any given method of 
amendment, it may be either (1) authorized; (2) permitted by 

1 See pp. 11-12, supra. ^ See pp. 18, 20-28, supra. 

^ See p. 17, supra. * See p. 17, supra. 

^ See pp. 16-22, supra. ' ^ See pp. 16-22, supra. 

^ See p. 12, supra. * See pp. 14, 15, supra. 

^ See pp. 15, 24, supra. " See p. 15, supra. 

^ See p. 15, supra. ^^ See pp. 22-24, supra. 



222 CONSTITUTIONAL CONVENTIONS 

not being prohibited; (3) prohibited; or (4) beyond the con- 
stitution's control.^ 

Anything beyond the constitution's control enjoys exactly the 
same status, regardless of whether the constitution attempts 
to authorize, or to prohibit it, or merely remains silent on the 
subject.^ 

Ill 

The word "constitutional," in the phrase "constitutional 
convention," does not refer to the constitutionality of the 
convention.^ 

Any dispute as to whether or not a convention is a "revolu- 
tion" is merely a dispute over definitions, for the word "revolu- 
tionary" may equally well mean "unlawful and violent" or 
merely "unauthorized by the constitution." It is used in the 
latter sense in this book.^ 

Each of the three classes of changes in constitutions — i. e. 
authorized, popular, and spontaneous — may take the form 
of a convention; thus giving us three sorts of conventions.^ 

IV 

Spontaneous conventions, not being bound by law, can 
furnish us with no useful precedents.^ 

Conventions unauthorized by the constitution have so often 
been held in the United States that it is now too late to question 
their validity.'^ 

They are lawful in at least ten of the twelve States whose 
constitutions impliedly prohibit them by expressly authorizing 
another method of amendment.^ 

Implied prohibition is as effective as express prohibition.^ 

Popular conventions have been successfully held on five 
occasions, in spite of express prohibition.^" 

Such conventions are not held under the constitution, for 
under the constitution they would be unconstitutional.^^ 

There is some basis for the theory that even when a consti- 

^ See pp. 25-26, supra. ^ See p. 26, supra. .-^ 

* See p. 30, supra. * See pp. 31-33, supra. 

^ See p. 34, supra. ^ See p. 34, supra. 
' See pp. 38-41, supra. ^ See pp. 41-42, supra. 

^ See pp. 43, 48, supra. ^'^ See p. 49, supra. 
" See pp. 45-46, supra. 



CONCLUSIONS 223 

tutlon purports to authorize a convention, the convention really 
derives its authority from a higher source; and that the pro- 
visions in the constitution, like those in a convention act passed 
by the legislature, merely serve to provide the means for the 
exercise of a superior right, inherent in the people.^ 

Conventions called by the people, speaking through their 
electorate at a regular election, are of unquestionable validity; 
and are extra- or supra-constitutional, rather than constitu- 
tional.^ 



The people enact the convention act, where they invoke 
the initiative,^ 

Where the constitution requires that a convention act be 
referred to a popular vote, the voters call the convention.^ 

Where the constitution permits the legislature to call a 
convention, it is the act of the legislature alone, unless we hold 
that the people ratify the action by not invoking the referen- 
dum, or by voting under the act.^ 

It is arguable that a convention called by the people under 
authority granted by the constitution stands upon no different 
footing than if the constitution withheld this authority.^ 

In the absence of applicable constitutional provisions, legis- 
latures have sometimes called conventions without taking a 
popular vote; but the validity of such conventions nowadays 
may be doubted.^ 

The passing of a convention act is not within the legislative 
powers of the legislature.^ 

Where the legislature submits the convention act to a popular 
vote, it is clear that the voters enact the act.^ 

The same is probably true when the people vote on the mere 
question of holding a convention, under an act which already 
purports to have been passed by the legislature.^" 

By analogy, a similar constitutional provision may become a 
popular enactment.^ 

^ See pp. 50-52, supra. ^ See pp. 48, 54-55, supra. 

^ See p. 58, supra. * See pp. 59-60, supra. 

^ See p. 60, supra. ^ See pp. 60-61, supra. 

^ See pp. 61, 66-68, supra. * See pp. 61-65, supra. 

9 See p. 78, supra. ^° See pp. 68-72, supra. 

11 Spp r> 77, syii/nrn.. 



" See p. 77, supra. 



224 CONSTITUTIONAL CONVENTIONS 

Thus it is possible that all provisions — whether statutory 
or in constitutions — for the holding of conventions are in 
reality given their entire validity by popular action thereunder.^ 

Nevertheless, the people have not the machinery to hold a 
convention, unless they are assisted either by the legislature 
or the constitution.^ 

It is preferable that this machinery be provided in detail 
by the constitution, as the people then will not be subject to 
the whim of the legislature, but may have a convention when- 
ever they desire to exercise their unquestionable right to have 
one.^ 

The only action which could be characterized as distinctly 
that of the legislature alone, would be for the legislature both 
to call the convention and elect the delegates, without any 
popular participation at any stage of the proceedings.^ 

VI 

A state constitution is a legislative act of the people.^ 

There is a marked distinction between the legislative powers 
of the people and the legislative powers of the legislature.® 

In exercising the legislative method of amendment, the legis- 
lature acts as a convention, being specially empowered thereto; 
but with this difference, that it is much more strictly bound to 
the terms of its warrant of authority than is an ordinary con- 
vention.'^ 

The legislature owes its powers, in this connection, to an 
express grant. ^ 

As to whether the legislature can act as an ordinary con- 
vention without a similar express grant, the authorities are 
divided.^ 

It is clear, however, that the legislature cannot claim this 
right under its general grant of legislative powers.^" 

The only possible difference between Indiana (where the 
legislature cannot turn itself into a convention) and North 
Dakota (where it can) lies in the theory that Indiana, by striking 

^ See p. 74, supra. ^ See pp. 75-77, supra. 

^ See pp. 76-77, supra. * See p. 74, supra. 

^ See p. 80, supra. ^ See pp. 80-82, supra. 

^ See pp. 82-83, supra. ^ See p. 83, supra. 

9 See pp. 83-84, 85-88, supra. " See pp. 84-85, supra. 



CONCLUSIONS 225 

the convention provision from her constitution, has manifested 
an intention never again to have a convention of any sort.^ 

VII 

The convention, although called at irregular intervals, is 
really a fourth branch of the government, and hence should 
enjoy the same independence from each of the three regular 
branches as they do from each other.^ 

The Governor cannot veto an initiative statute, which either 
calls a convention or prescribes the details.^ 

The Governor cannot veto a legislative act which takes a 
popular vote on calling a convention, under provisions in the 
constitution, but can probably veto one which prescribes the 
details.^ 

If the constitution provides for both the popular vote and 
the details, the Governor cannot prevent the holding of the 
convention.^ 

The authorities disagree as to whether the Governor can veto 
a convention act which is unauthorized by the constitution.^ 

All the foregoing gubernatorial interference is exercised, 
however, under the Governor's legislative, rather than under 
his executive, powers.'^ 

In his executive capacity, the Governor is often the authorita- 
tive ojQEicial to decide whether or not a new constitution is legal.^ 

Similarly, the Federal executive has the power to settle the 
question, acting under either of two clauses in the Federal 
Constitution. One of these clauses guarantees a republican 
form of government to each State; the other authorizes the 
president to maintain order in any State which requests it.^ 

The Governor participates to some extent in this Federal 
interference, by requesting it.^° 

VIII 

The question: "Can the legislature amend the convention 
act?" involves three questions: namely, (1) The general power 

^ See p. 87, supra. ^ See pp. 89-91, supra. 

* See p. 91, supra. * See pp. 91-92, supra. 

^ See p. 91, supra. ^ See pp. 92-93, supra. 

'' See p. 93, supra. ^ See pp. 93-94, supra. 

^ See pp. 94^96, supra. ^° See p. 95, supra. 



226 CONSTITUTIONAL CONVENTIONS 

of the legislature to interfere with conventions; (2) Who 
enacted the act? and (3) Can the legislature amend that which 
the people have enacted?^ 

Assuming the premises, i. e. that the subject matter of the 
amendment is within the delegated powers of the legislature, 
but that the people enacted the original act; then it is certain 
that the legislature cannot amend it.^ 

The legislature can amend a convention act passed solely by 
it, unless we adopt the theory that the people have assumed 
responsibility for the act by participating in an election held 
under it.^ 

IX 

The question of the power of the legislature to control the 
convention depends largely upon who passes the convention act.^ 

If the legislature passes it, it probably is not binding upon the 
convention; if the people pass it, it probably is binding.^ 

The confusion of precedents and authorities upon this point 
is largely due to a failure to analyze the source of the statute 
in question.^ 

It is clear that the legislature cannot bind a convention 
authorized by the constitution/ 

The convention would lose a large part of its usefulness, if it 
were subject to legislative control.^ 

Where conventions have acceded to legislative restrictions, 
this merely proves that the restrictions seemed reasonable, not 
that they were binding,^ 

Perhaps, however, the legislature can impose restrictions upon 
a convention to the same extent that it can upon the judiciary; 
but this may be doubted on the ground that the convention is 
a body of the same sort as the legislature, but of a higher order.^°. 

It is clear that the legislature has no power to abolish a pend- 
ing convention, except perhaps in cases of great emergency.-^^ 

But the legislature may possibly be able indirectly to abolish 
a convention, by withholding funds.^^ 

^ See p. 97, supra. ^ See pp. 98-104, supra. 

* See p. 98, supra. * See pp. 120-121, supra. 

^ See pp. 108-114, 121-125, supra. ^ See p. 121, supra. 

^ See pp. 106-108, supra. ® See p. 108, supra. 

^ See pp. 108-111, supra. ^" See pp. 114^115, supra. 

" See pp. 115-116, supra. ^^ See pp. 117-118, supra. 



coNCLrsiONS 227 

In case the legality of a convention Is In doubt, the legis- 
lature may be In a position to determine It, by recognition or 
non-recognition, or by soliciting Federal intervention.^ 

The legal standing of a convention may, In some instances, 
if a Federal question Is Involved, be determined by Congress.^ 

The legislature is in a position to direct the course of popular 
control of conventions, by framing the convention act.^ 

X 

The electorate can amend a convention act, regardless of 
whether It was originally passed by the legislature alone, by 
the legislature and the electorate, or by the electorate alone.^ 

No one, except the people as a whole, can acquire a vested 
right in a convention movement.^ 

The electorate can abolish the convention at any time, or 
merely nullify its work by refusing to accept It.^ 

The people have a right to Instruct their delegates, but the 
instructions will have a moral rather than a legal force.^ 



XI 

The conventions of the Revolution exercised sovereign powers, 
by necessity.^ 

Similarly with respect to secession (not strictly constitutional 
conventions), reconstruction, and territorial conventions.^ 

These furnish no precedent for State conventions in times 
of peace; but the objection is to the Vv^eight, rather than to the 
admissibility, of the evldence.^*^ 

The "doctrine of convention sovereignty" so-called, repre- 
sents merely oratorical flights of fancy, and goes no further in 
actual practice than to assert the possession by the convention 
of Incidental and emergency powers, and Its independence from 
legislative control. ^^ 

A convention has no right to legislate.^^ 

1 See p. 118, supra. ^ See p. 119, supra. 

2 See pp. 123-124, supra. * See p. 125, supra. 
^ See p. 125, supra. ^ See p. 125, supra. 

7 See pp. 125-127, supra. « See pp. 128-129, supra. 

9 See pp. 129-130, supra. i" See p. 130, supra. 

11 See pp. 131-135, supra. 12 gee pp. 139-142, supra. 



228 CONSTITUTIONAL CONVENTIONS 

But it can validate its legislation by inserting it in the con- 
stitution.^ 

Or by a blanket validating-clause in the constitution.^ 

Or by submitting the legislation to the people.^ 

If the constitution or the convention act exempts the con- 
vention from the necessity of submitting its work to the people, 
it may legislate to its heart's content.^ 

A convention may pass such rules and ordinances as are 
necessarily incident to its business of constitution-framing, or 
as are necessary to putting its constitution into effect.^ 

The principle whereby territorial and reconstruction conven- 
tions have exercised powers entrusted by the Federal Consti- 
tution to the State legislatures, may possibly be extended to 
State conventions.^ 

A complete overturn of the existing government is apt to be 
more successful than partial interference would be.'' 

XII 

The courts require a strict compliance with the constitutional 
provisions relative to amendment by the legislative method.^ 

But are not so strict with respect to constitutional provi- 
sions relative to the convention method.^ 

It is an open question whether courts will interfere with the 
convention method in matters not covered by the constitution, 
although probably they ought not to.^*' 

It is clear that they cannot and wiU not interfere in the 
internal affairs of a convention.^^ 

The weight of authority is that the courts will not interfere 
after the adoption of a change by the people.^^ 

The question then becomes political rather than legal.^^ 

But this doctrine may not apply to amendments which do 
not go to the root of the whole structure of the government.-^^ 

The value of a judicial determination of the validity of a 

^ See pp. 142-144, supra. ^ See p. 142, supra. 

3 See pp. 144-146, supra. * See p. 146, supra. 

^ See pp. 146-147, supra. ^ See p. 147, supra. 

' See p. 148, supra. ^ See pp. 149-151, supra. 

3 See pp. 150-151, supra. ^^ See pp. 151-153, supra. 

" See pp. 152-153, supra. ^^ See pp. 153-157, supra. 
13 See pp. 155-158, 162-163, supra. " See pp. 155-156, supra. 



CONCLUSIONS 229 

government is minimized by the fact that a court is bound to 
decide in favor of the constitution under which it holds office.^ 

A different question is presented by the case of judicial in- 
terference with the convention, in matters outside the conven- 
tion's proper functions.^ 

It is clear that a court will stop an ultra vires act by a con- 
vention, as readily as it would stop an ultra vires act by any 
other department.^ 

The Federal courts have no power to interfere with a conven- 
tion, except in case of the violation of the United States Consti- 
tution, or where some other Federal question is involved, such 
as the election of Congressmen.'* 

The courts will assist a convention to secure its rights; 
much the same as they would assist any other branch of the 
government.^ 

In States where the courts do not interpret their advisory 
duties too strictly, they will probably assist the convention by 
judicial advice, much the same as they would assist any other 
branch of the government.^ 

XIII 

Constitutional provisions for the holding of a convention 
are probably merely directory.^ 

But, like a convention act, they may be made mandatory by 
popular action thereunder.^ 

The constitution cannot prevent the holding of a convention.^ 

By the same token, it should not be able to restrict a con- 
vention.^° 

The constitution has absolutely no application to extracon- 
stitutional conventions.^^ 

Unamendable portions of a constitution may be amended by 
a convention, although not by the legislative method.^^ 

Conventions, like other branches of the State government, 
are, however, bound by the Federal Constitution.^^ 

^ See pp. 157-158, supra. ^ See pp. 158-160, supra. 

* See p. 160, supra. * See pp. 160-162, supra. 

^ See p. 163, supra. ^ See pp. 163-164, supra. 

"^ See p. 166, supra. ^ See pp. 166, 168, supra. 

^ See p. 166, supra. i" See pp. 166-168, supra. 

^1 See p. 168, supra. ^ See pp. 167-168, supra. 
1* See pp. 168-169, supra. 



230 CONSTITUTIONAL CONVENTIONS 

XIV 

A convention is the sole judge of its own membership.^ 

This right carries with it the power to provide for the filling 
of vacancies and to expel members.^ 

It can hire a hall, choose officers and employees, adopt rules, 
purchase supplies, perpetuate its records, and arrange for all 
necessary printing.^ 

It need not employ the regular State printer.^ 

It may maintain order and punish both members and out- 
siders for direct contempt.^ 

It can pledge the State's faith, and perhaps its credit, for its 
legitimate expenses.^ 

In general, it has all powers necessarily incident to the busi- 
ness delegated to it.^ 

It may probably reconvene after the popular adoption of its 
proposals, to codify and promulgate the amended constitution; 
at least for the latter purpose.^ 

XV 

The term "officer" in a constitution means a person holding 
office under that constitution.^ 

Thus, although delegates to an unauthorized convention are 
"officers," they are not "officers" within the meaning of the 
constitution.^" 

It would be anomalous for the delegates to take an oath to 
support that which they have assembled to overturn, i. e. the 
State constitution.^^ 

But, as the Federal Constitution is binding upon them, they 
should swear to support it; and should also swear to perform 
faithfully the duties of delegate.^^ 

Delegates are entitled to the same privileges and immunities 
as members of the legislature.^ 



13 



1 See pp. 170-171, supra. ^ See pp. 171-172, 181, supra. 

^ See pp. 172-180, supra. * See p. 179, supra. 

6 See pp. 180-182, supra. ^ See pp. 177-178, 180, supra. 

'' See p. 184, supra. ^ See pp. 182-184, supra. 

^ See pp. 185-187, supra. ^° See p. 186, supra. 

" See pp. 187-190, supra. ^^ See pp. 190-191, supra. 
13 See pp. 191-192, supra. 



CONCLUSIONS 231 

XVI 

Submission of amendments to the people is necessary when 
required by the constitution or by a convention act which the 
people have enacted.^ 

And there is some authority to the effect that the work of an 
extraconstitutional convention is not valid until it has been 
ratified by a popular vote.^ 

This is probably true, at least in cases in which the conven- 
tion was called by the legislature acting alone.^ 

The legislature cannot change the time for submission; for 
that would amount to amending the convention act, which is 
impossible if the people originally enacted it; and would amount 
to legislative interference, which also is illegal.^ 

The convention can change the time for submission, even if 
the convention act is popular in its nature.^ 

There is no inherent difference between a new constitution 
and an amended constitution.^ 

The phrase "specific and particular amendment" means 
merely "amendment"; or, at the most, a single definite propo- 
sition, as distinguished from a vague general need for change/ 

A convention called to make a general revision may submit a 
number of separate amendments, or a new constitution, or a 
new constitution plus a few separable propositions.^ 

Every distinct proposition, not vital to the scheme as a whole, 
ought to be submitted separately.^ 

The convention probably can lawfully enlarge or reduce the 
electorate to which it submits its work, subject only to the pro- 
visions of the Federal Constitution.^" 

In the absence of popular directions, the convention may 
lawfully prescribe all the details for submission and promulga- 
tion of the constitutional changes recommended by it.^^ 

XVII 

The validity of all constitutional changes rests, in the last 
analysis, upon "the assent of the people." ^^ 

1 See pp. 193-195, supra. ^ See pp. 195-196, supra. 

2 See p. 196, supra. * See pp. 196-197, supra. 
^ See pp. 197-198, supra. ^ See p. 198, supra. 

7 See pp. 198-200, supra. » gee pp. 200-205, supra. 

9 See pp. 202-203, supra. " See pp. 205-212, supra. 

" See pp. 212-213, supra. ^ See pp. 217-218, supra. 



232 CONSTITUTIONAL CONVENTIONS 

Lapse of time, and popular and governmental acquiescence, 
will cure almost any informality.^ 

But this cure affects merely the results, and does not relate 
back and validate the means .^ 

The validity of a convention-born amendment rests not on 
the submission of the amendment to the people, but rather on 
the submission to the amendment hy the people.^ 

All governments derive their just powers from the consent 
of the governed.* 

1 See pp. 214-216, swpra. ^ See p. 218, swpra. 

3 See p. 217, swpra. * See p. 219, swpra. 



INDEX 



Acquiescence, doctrine of, 214- 
219; does not validate means, 
218-219. 

Alabama, constitution of 1901, 113; 
convention of 1866, 141; conven- 
tion of 1867-68, 141; convention 
of 1901, 111, 112-113; conven- 
tions freed from legislatm-e, 107; 
conventions held lawful in, 40. 

Amendment, legislative method of, 
82-85, 107, 149-150; of consti- 
tutions, 8-10; of convention acts 
by electorate, 125; of convention 
acts by legislature, 97-104; of 
initiated acts by legislature, 99- 
100; set aside by judiciary, 149- 
150, 153-158, 160-162; specific 
and particular, 198-200; time of, 
taking effect, 197; validity of, a 
political question, 162-163; va- 
lidity of, determined by Congress, 
119; vaUdity of, determined by 
Governor, 93-94; vaUdity of, de- 
termined by legislature, 118; va- 
lidity of, determined by Presi- 
dent, 94-96. 

Analysis of questions, 33-37. 

Anglo-Saxon origin of constitu- 
tions, 1. 

Annapolis convention, 7. 

Appropriation of money by con- 
vention, 177, 178. 

Arizona, constitution of 1910, 193. 

Arkansas, constitution silent on 
conventions, 9, 41; convention 
of 1868, 207; convention of 1874, 
39; conventions in, 41; poll tax 
amendment of 1892, 161. 

Arrest, delegates free from, 191-192. 



Articles of Confederation, United 
States Constitution violates, 39, 
49. 

Attwill, Atty. Gen., opinion of, on 
constitutionality, 43-45; opinion 
of, on status of delegates, 186-187. 

Authorized conventions, constitu- 
tion may be disregarded by, 48, 
61-52, 60; made independent of 
legislature, 76-77, 106-108; per- 
haps popular in nature, 50; provi- 
sions for calling, 58-60; veto can- 
not block, 91-92. 

"Authorized procedm*e" defined, 
15. 

Banks, Nathaniel P., Louisiana 
convention of 1864, 182. 

Berhn controversy, 102-103, 171- 
172. 

Bills of Rights, do not "authorize" 
popular conventions, 45, 53; 
quotations from, 13-15. 

Braxton, object of his article, 128. 

Buchanan, President, Lecompton 
controversy, 103, 116, 196. 

Butler, Benjamin F., views on con- 
vention sovereignty, 133; views 
on revolution, 32-33. 

California, convention of 1849, 
176, 187. 

Calling of convention, by initiative, 
58; by legislatiu-e, 60, 66-68; 
by people, 68-60, 69-74. 

Choate, Rufus, views on conven- 
tion act, 71. 

Classes of, constitutional cases, 26; 
conventions, 33-35, 54. 



234 



INDEX 



Codification of constitution, 182- 
184. 

Colonies, early constitutions of the, 
3-8; early legislatures of the, 
2-3. 

Committees of convention, 174-177. 

Concord, Mass., invented the con- 
vention, 7. 

Congress, on validity of State con- 
vention, 118-119; on validity of 
territorial convention, 119; ratifi- 
cation of territorial convention 
by, 20-21, 79; restraint of terri- 
torial convention by, 111. 

Connecticut, charter legislature 
continued in, 3; charter imtil 
1818 in, 2, 4; constitution of 1818, 
193; constitution silent on con- 
ventions, 9, 41; convention of 
1818, 39; convention of 1902, 40; 
conventions in, 41. 

Constitution, British, 1. 

Constitution, United States, bind- 
ing on conventions, 132, 168-169; 
destroys right of revolution? 15, 
168; distinction between State 
and, 25-26; duties assigned to 
legislatures, 147, 169; origin of, 
7-8; ratification of, 7, 8; repub- 
lican government guaranteed by, 
11, 95-96; two methods of 
amending, 9, 10; unauthorized 
by the State Constitutions, 39; 
violation of Articles of Confed- 
eration, 39, 49. 

Constitutional, cases neither, nor 
unconstitutional, 26; definition 
of, 25-26, 30; fom- classes of, 
cases, 26. 

Constitutional convention, appro- 
priation of money by, 177, 178; 
calling of, by legislature, 60, 66- 
68; calling of, by people, 58-60, 
69-74; classes of, 33-35, 54; 
codification of constitution by, 
182-184; committees of, 174-177; 
congressional interference with, 
118-119; constitution cannot pro- 
hibit, 39-43, 48-49; contempt 



Constitutional convention — contd. 
powers of, 180-182; contested 
elections in, 170-171; delegates 
are not "officers," 185-187; de- 
velopment of, in Delaware, 4; 
development of, in Massachusetts, 
4—5, 6, 7; development of, in 
New Hampshire, 6-7; dissolu- 
tion of, by legislature, 115-116; 
election of members of, 170-171; 
executive interference with, 91- 
96; extraordinary powers claimed 
by, 128-141, 158-160; Federal 
Constitution binding on, 168- 
169; filling vacancies in, 171-173; 
fourth branch of government, 89- 
91, 160; idea of a separate, 4, 6, 
7; incidental legislative powers of, 
146-147; interference with, in 
general, 89-91; internal proced- 
ure of, 170-182, 187-190; judi- 
cial advice to, 163-164; judicial 
aid to, 163; judicial interference 
with, 150-153, 158-160; legisla- 
tion by, 139-147; legislative 
control of, 105-116, 120-122, 
123; legislative duties of, xmder 
U. S. Constitution, 147, 169; leg- 
islative interference with, 116- 
118; legislative nature of, 81, 90; 
legislature as a, 4, 79-88; no con- 
stitutional provisions for, in 
twelve States, 41 ; oaths of mem- 
bers of, 108-109, 187-191; offi- 
cers of, 173; order maintained by, 
180-182; origin of, 1-8; popu- 
lar control of, 120-127; provi- 
sions for, in early constitutions, 
8-9; provisions for, in later con- 
stitutions, 9-10; printing for, 
179-180; privileges of members 
of, 191-192; records of, 178-179; 
resignation of delegates, 126; 
rules of, 173-174; sergeant-at- 
arms of, 173, 180; supplies for, 
178; term not felicitous, 30; 
usurpation of powers by, 148- 
149; vacancies in, 171-173; va- 
cating of offices by, 138-139; 



INDEX 



235 



Constitutional convention — contd. 
validity of, a political question, 
162-163; validity of, determined 
by Congress, 119; validity of, de- 
termined by Governor, 93-94; 
validity of, determined by legis- 
lature, 118; validity of, deter- 
mined by President, 94-96. {See 
also Authorized, Popular, and 
Spontaneous Conventions.) 

Constitutions, Anglo-Saxon origin 
of, 1; cannot prohibit conven- 
tion expressly, 48-49; cannot 
prohibit convention impliedly, 
39-43; codification of, 182-184; 
Colonial, 3-8; conventions not 
mentioned in, of twelve States, 
41; delegates not officers imder, 
185-187; four elements of, 2; 
framed by legislature, 3, 79-88, 
202; legislative acts of the peo- 
ple, 80; not applicable to conven- 
tions, 50-52, 165-168; setting 
aside of, by judiciary, 149, 153- 
158; validity of, a political ques- 
tion, 162-163. 

Contempt powers of conventions, 
180-182. 

Contested elections, 170-171. 

Convention acts, amendable by 
people, 125; derive force from 
legislature, 70-72; derive force 
from people, 69-70, 71; if legis- 
lative, not binding, 106-116; if 
popular, binding, 120-125; In- 
diana, 1917, not submitted, 67- 
68; legislature cannot amend, 
97-104; not ordinary legislation, 
62-65, 80-83; passed by legisla- 
ture alone, 66-68; people employ 
legislature to pass, 73-74, 100; 
reasonable restrictions in, 114; 
repeal by legislature, 115-116; 
should be submitted to people, 
66-68; veto of, by Governor, 91- 
93. 

Conventions (see Authorized, 
Constitutional, Popular, and 
Spontaneous Conventions). 



Convention sovereignty, asserted, 
131-134; denied, 135-138; de- 
velopment of theory of, 134-135; 
instances of, 138-141; judicial 
interference, 158-160; mere ora- 
tory, 135; not suited to peaceful 
times, 128-129; secession caused 
by? 134. 

Dallas, George M., views on 
sovereignty, 131-132. 

Declaration of Independence, 12, 
26-27. 

Delaware, charter legislature con- 
tinued in, 3; constitution of 1776, 
48; constitution of 1796, 9, 12, 
59; convention of 1791, 40, 49; 
convention of 1852, 40, 47, 51, 
166; first regular convention? 4. 

Delegates, abler men than legisla- 
tors, 113; contested elections, 
170-171; filling vacancies, 171- 
173; freedom from arrest, 191- 
192; instructions to, 126-127; 
newspapers for, 178; not "offi- 
cers," 185-187; oaths of, 108, 
109, 187-191; pay of, increased 
by convention, 111; privileges of, 
191-192; punishment of, for 
contempt, 180-181; resignation 
of, 126; stationery for, 178; 
status of, 185-192. 

Dissolution of convention, by leg- 
islature, 115-116. 

Divine right, 120. 

Dog, Story of disobedient, 50. 

Dorr's Rebellion, 21-22, 95, 134, 
217; Federal court does not in- 
terfere, 162; influence of, on R. I. 
court, 57; report on, 23; reason 
for failure of, 76. 

Election, conduct of, by conven- 
tion, 212-213; voluntary, in- 
effective, 19-20; of delegates, 
170-171; electors can speak only 
at authorized, 18-20. 

Electorate, call of convention by, 
58-60, 69-74; can speak only 



236 



INDEX 



Electorate — continued 

at authorized election, 18-20; 
constitutional qualifications not 
binding, 205-212; opinion of 
Massachusetts court, 208-210; 
representative natiu-e of, 16-18; 
submission to enlarged or re- 
duced, 205-212; U. S. Constitu- 
tion provisions, 169, 212. 

Ex necessitate, 47, 100. 

Ex post facto, 169. 

Executive intervention, 91-96. (See 
also under Governor, Presi- 
dent.) 

Expressio unius est exclusio alterius, 
43, 49, 210. 

Extra-constitutional conventions, 
55-56. 

Extra-legislative power to submit 
act, 62-65, 80-83; does not 
exist imder the initiative, 100. 

Extraordinary powers claimed by 
convention, 128-141, 158-160. 

Factional convention {see Spon- 
taneous Convention). 

Federal Constitution (see Consti- 
tution, U. S.). 

Federal judiciary. Dorr's Rebel- 
lion, 162 ; interference with State 
amendments, 161-162. 

Florida, constitution of 1865, 144; 
convention of 1865, 48, 52, 130- 
131. 

Four branches of government, 89- 
91, 160. 

Fundamental principles, 11-29. 

Georgia, constitution of 1776, 4, 8; 
constitution of 1777, 4, 13; con- 
stitution of 1789, 193; convention 
of 1788, 48, 52, 111; convention 
of 1789, 111; convention of 1833, 
39, 49, 108, 189; convention of 
1839, 39, 49; convention of 1867, 
181; conventions without popu- 
lar vote, 60. 

Governor, legislative powers of, 93; 
recognition of political change by. 



Governor — continued 

93-94; requests Federal interven- 
tion, 95; vetoes the convention 
act, 91-93. 

Greene, WilUam B., views on revo- 
lution, 32. 

Illinois, convention of 1847, 132, 
187, 204; convention of 1862, 108, 
111, 132, 147, 182, 187, 188, 189, 
204; convention of 1869, 108, 
111, 176, 188, 207; partial suf- 
frage in, 210. 

Indiana, constitution silent on con- 
ventions, 9, 41; convention of 
1850, 39, 41, 51, 166, 187; con- 
vention of 1918, 40, 42, 67-68, 
201, 205, 211; conventions held 
lawful ia, 42; disregard of people 
in, 67-68; legislative constitu- 
tion in, 80; partial suffrage in, 
210, 211. 

Initiative and referendum, amend- 
ment by legislature, 99-100; call 
of conventions by, 58; constitu- 
tion amendment by, 107; de- 
stroys legislatures' power to sub- 
mit convention act, 100; States 
having, 9; veto not possible 
under, 91. 

Instructions to delegates, 126-127. 

Interference with convention, by 
Governor, 91-96; by judiciary, 
150-153, 158-160; by legisla- 
ture, 116-118; in general, 89-91. 

Iowa, convention of 1857, 187, 188. 

Jameson, object of his book, 35, 97, 
105, 128. 

Johnson, Andrew, reconstruction 
conventions, 129-130. 

Judicial, advice to convention, 163- 
164; assistance to convention, 
163; control of convention, 150- 
153, 158-160; extension of own 
tenure, 214-215; fondness of own 
jobs, 157-158; setting aside con- 
vention's work, 153-158; sui- 
cide, 157-158. 



INDEX 



237 



Kansas, convention of 1859, 207; 
Lecompton convention in, 103, 
116, 196; Topeka convention in, 
20. 

Kentucky, constitution of 1792, 8; 
constitution' of 1799, 59; consti- 
tution of 1850, 59; constitution 
of 1891, 59, 193; convention of 
1849, 134, 187; convention of 
1890, 112, 183, 195, 216. 

Lecompton convention, 103, 116, 
196. 

Legislation, by convention, 139- 
147; convention act is not, 62- 
65, 80-83; incidental, by con- 
vention, 146-147; inserted in 
constitution, 142-144; valid 
though not submitted, 145-146; 
vahdation of, by people, 144-145. 

Legislative interference, by inac- 
tion, 76-77, 116-117; with con- 
vention, 116-118. 

Legislative method of amendment, 
growth of, 8-10; extra-legislative 
nature of, 82-85; judicial con- 
trol of, 149-150; legislative 
control of, 107. 

Legislative nature of convention, 
81, 90. 

Legislatiu-e, abdicates by calling 
convention? 73 ; agent for people, 
73-74, 100; amendment of pop- 
ular statutes by, 99-100; as a 
convention, 4, 79-88; assistance 
of, essential, 75, 117; control of 
conventions by, 105-116, 120- 
122, 123; constitutions framed 
by, 3, 79-88, 202; convention act 
cannot be enacted by, alone, 66- 
68; convention act not amend- 
able by, 62-65, 80-83; delegation 
to, by popular vote, 73-74; dele- 
gates chosen by, 74; direction 
of popular control by, 123; dis- 
solution of convention by, 115- 
116; has no inherent rights, 75; 
has power to assist people, 85; 
inititative deprives, of power, 



Legislature — continued 

100; powers ex necessitate, 47, 
100; recognition of political 
change by, 118. 

Lincoln, Abraham, dismembers Vir- 
ginia, 95. 

Livingstone, remarks on convention 
sovereignty, 131. 

Louisiana, constitution of 1812, 59; 
constitution of 1913, 193, 218; 
constitution silent on conven- 
tions, 9, 41; convention of 1812, 
187; convention of 1844, 187, 
188, 207; convention of 1852, 
39, 187, 207; convention of 1864, 
182; convention of 1879, 40; 
convention of 1898, 40, 108, 141, 
142, 147, 189; convention held 
lawful in, 40; conventions in, 41. 

Maine, codification of 1875, 168, 
184; constitution of 1819, 193; 
conventions called without pop- 
ular vote, 60. 

Maryland, constitution of 1776, 4, 

8, 12, 126; convention of 1776, 
175, 187; convention of 1837, 20, 
134; convention of 1850, 40, 49, 
187; convention of 1864, 187, 207. 

Massachusetts, charter of, 206; 
charter until 1780 in, 2, 4; con- 
stitution silent on conventions, 

9, 41; constitution of 1780, 4, 6, 
8, 12, 193, 203; convention of 
1778, 4, 5, 175; convention of 
1780, 175, 187, 206; convention 
of 1820, 40, 187, 203; con- 
vention of 1853, 40, 47, 102-103, 
171-172, 187, 198, 210; conven- 
tion of 1917, 40, 205; conventions 
in, 41; provincial congress of, 3, 
5; quahfications of voters in, 206, 
207-210; referendum in, 64. 

Michigan, admission to statehood, 
20; constitution of 1908, 77; 
convention of 1835, 207; con- 
vention of 1850, 187; convention 
of 1908, 111-112, 163, 176, 197, 
204; conventions freed from leg- 



238 



INDEX 



Michigan — continued 
islature, 77, 106-107; legislative 
commission of 1873, 79; legisla- 
tive submission in 1874, 202; par- 
tial suffrage in, 210. 

Minnesota, convention of 1857, 179, 
187, 188. 

Mississippi, constitution silent on 
conventions, 9, 41; convention 
of 1890, 140, 142, 147; conven- 
tions in, 41. 

Missouri, Civil War in, 129-130; 
constitution of 1875, 77; con- 
vention of 1845, 40, 187; con- 
vention of 1861, 40, 138-139; 
convention of 1865, 40, 138, 141, 
146, 147, 207; convention of 1890, 
40; conventions freed from legis- 
lature, 77, 106-107. 

Morton, Marcus, views of, 47, 69, 
196, 210. 

"Natick Cobblek," 102. 

Nebraska, admission to statehood, 
79; Governor of, blocks conven- 
tion in 1903, 92; partial suffrage 
in, 210. 

New Hampshire, constitution of 

1776, 4, 6, 8; constitution of 
1778, 193; constitution of 1784, 
9, 12; constitution of 1792, 193; 
convention of 1778, 4, 6; con- 
vention of 1781-83, 4, 6; con- 
vention of 1791, 203; convention 
of 1850, 203; convention of 
1889, 197; convention of 1912, 
204; legislature thwarts people, 
77; no legislative method in, 9. 

New Hampshire Grants, resolu- 
tions of, 6, 7; origin of conven- 
tion idea? 7. 

New Jersey, constitution of 1776, 
4, 8; constitution silent on con- 
ventions, 9, 41; convention of 

1777, 175; convention of 1844, 
40, 187, 206; conventions in, 
41. 

New Mexico, constitution of 1910, 
193. 



New York, constitution of 1777, 4, 
8; constitution of 1846, 76; con- 
stitution of 1894, 76-77; conven- 
tion act vetoed, 1820, 204; con- 
vention of 1801, 40; convention 
of 1821, 40, 131, 187, 193, 203, 
206; convention of 1846, 40, 101- 
102, 203, 204; convention of 1867, 
111, 197, 207; convention of 
1894, 76, 117, 152-153, 170-171, 
176; convention of 1915, 204; 
conventions freed from legisla- 
ture, 76-77, 106-107; popular 
vote of 1886 thwarted, 76, 92, 
117. 

North Carolina, constitution of 
April, 1776, 4; constitution of 
Dec, 1776, 4, 8, 12; convention 
of 1835, 40, 108, 187, 189; con- 
vention of 1875, 108, 189. 

North Dakota, constitution silent 
on conventions, 9, 41; conven- 
tions held lawful in, 40, 41; 
judges extend own tenure in, 214, 
215; legislative constitution in, 
85-88; opinion of attorney gen- 
eral of, 86-88; partial suffrage 
in, 210. 

Oaths, by delegates, 108-109, 187- 
191; by State officers, 190; re- 
quired by three constitutions, 189. 

Officers, delegates are not, 185-187; 
of convention, 173. 

Ohio, constitution of 1802, 59; 
convention of 1850, 126, 187, 188; 
convention of 1912, 176, 204; 
partial suffrage in, 210. 

Oklahoma, constitution of, 143; 
territorial convention (1907), 
141-142, 143, 152. 

Order, maintenance of, 180-182; 
rules of, 173-174. 

Oregon, convention of 1857, 204. 

Origin, of constitutions, 1; of con- 
ventions, 1-8. 

Parker, Joel, views on convention 
act, 70, 115. 



INDEX 



239 



Pennsylvania, constitution of 1776, 
4, 8, 12; constitution of 1838, 
109; constitution of, silent on 
conventions, 9, 41; convention 
of 1776, 175, 187; convention of 
1789, 48, 51, 175, 187; convention 
of 1837, 40, 187, 203-204; con- 
vention of 1872, 40, 109, 111, 132, 
151; conventions in, 41; theory 
of popular origin, 72-73. 

People, amendment of convention 
act by, 125; can only speak 
through electors, 16-19; inform- 
ing the, relative to changes, 213; 
instruction of delegates by, 126; 
right of, to change government, 
12-16; submission of constitu- 
tion to, 193-212; submission of 
convention act to, 59, 66-68, 74; 
who are the, 17-20, 23. 

"People's Constitution," 21-22, 
95. 

Peters, Onslow, views on sover- 
eignty, 132. 

Philadelphia convention, 7-8. 

PoUtical question, determined by 
Governor, 94; determined by 
judiciary, 162-163; determined 
by President, 94-96. 

Popular control of convention, 120- 
127; legislatm-e can direct the, 
123; valueless, 123. 

Popular conventions, caUed by 
people, 61-71, 72-75; definition 
of, 38; ex necessitate, 47; extra- 
constitutional, 55-56; illegal, 43; 
legal though prohibited, 49, 55; 
legality of, 38-57; legislative as- 
sistance essential, 75; legislative 
control of, 108-116; legislative 
control of, not authorized, 45; not 
within legislative powers, 62-65; 
objections raised to, in, 42; 
revolutionary? 31-33. 

Popular sovereignty, 11-15. 

Popular vote, makes legislature 
agent, 73-79; for convention 
ratifies act, 61-72; for delegates 
ratifies act, 72-73. 



President, interference with con- 
vention, 94-96. 
Printing for convention, 179-180. 
Privileges of delegates, 191-192. 

Reconstruction Conventions, 
call of, not submitted to people, 
67; no precedent for present 
ones, 129-130; submitted con- 
stitutions, 163. 

Records of convention, 178-179. 

Representative government, 11, 126. 

Republican form of government, 11, 
95-96, 169. 

Resignation of delegates, 126. 

Restriction of convention, by legis- 
lature, 106-116; by people, 120- 
125; reasonable, 114. 

Revolution, definition of, 17, 31-33; 
right of, 15-16, 53, 168. 

Rhode Island, charter legislature 
continued in, 3; charter imtil 
1842, 2, 4; constitution silent on 
conventions, 9; convention of 
1824, 40; convention of 1832, 40; 
convention of 1841, 40, 206; con- 
vention of 1842, 40, 206; con- 
ventions illegal in, 9, 41; Dorr's 
Rebellion in, 21-22, 95, 134, 217; 
legislative constitutions re- 
jected, 79, 202; partial suffrage 
in, 210; " People's Constitution " 
in, 21-22, 95; prohibition amend- 
ment of 1866, 161; submission 
of constitutions in 1898 and 
1899, 79; submission of ques- 
tion in 1853, 41. 

Right to change government, 12- 
15; destroyed by U. S. Consti- 
tution? 15; three methods of ex- 
ercise, 15-16. 

Rules of convention, 173-174. 

Secession conventions, call of, 
not submitted to people, 67; did 
not submit constitutions, 163; 
no precedent for modem ones, 
129-130. 

Sergeant-at-arms, 173, 180. 



240 



INDEX 



Shaw, Lemuel, distinction between 
State and U. S. constitutions, 25. 

Singleton, General, views on con- 
vention sovereignty, 132. 

South Carolina, constitution of 
1776, 4, 8, 12; constitution of 
1778, 4; convention of 1790, 9, 
40; convention of 1865, 145; 
convention of 1895, 140, 142, 147. 

Specific and particular amendment, 
198-200. 

Spontaneous convention, depends 
on force, 23; examples of, 20-23; 
not valuable precedents, 34. 

State of nature, suggested, 1; im- 
possible, 26-28. 

Submission, definition of, 31; by 
the people, 217; of amendments, 
electorate, 205-212; of amend- 
ments, form, 198-205; of amend- 
ments, method, 212-213; of 
amendments, necessity, 193-196; 
of amendments, time, 196-198; 
of call for convention, 59, 66-68, 
74; separate, of amendments, 
198-205. 

Suffrage {see Electors). 

Supplies, purchase by convention, 
178. 

Tennessee, constitution of 1796, 
59; constitution of 1865, 94; 
convention of 1796, 175, 187; 
convention of 1834, 187, 207; 
convention of 1870, 40. 

Territory, admission to statehood, 
15; ratification by Congress, 20- 
21, 79; restraint by Congress, 
111; validity of convention de- 
termined, 119. 

Texas, constitution silent on con- 
ventions, 9, 41; convention of 
1845, 207; convention of 1868, 
143; convention of 1876, 40; 
conventions in, 41. 



Tyler, John, interferes in Rhode 
Island, 21, 95, 217. 

Unconstitutional {see Constitu- 
tional). 

United States, Annapolis conven- 
tion, 7; Constitution {see Con- 
stitution, U. S.); convention of 
1787, 7-8, 175. 

Usurpation by convention, 148-149. 

Vacancies, filling of, 171-173. 

Validity of convention, a political 
question, 162-163; determined 
by Congress, 119; determined by 
Governor, 93-94; determined by 
legislature, 118; determined by 
President, 94-96; popular con- 
vention valid, 38-57. 

Vermont, constitution of 1777, 8; 
constitution silent on conven- 
tions, 9, 41; convention of 1777, 
175; convention of 1786, 7, 193; 
convention suggested in 1908, 41. 

Veto, initiative and referendum not 
subject to, 91; of authorized 
convention act, 91-92; of popu- 
lar convention act, 92-93. 

Virginia, constitution of 1902, 156; 
convention of 1829. ^tft>. J^7. 207; 
convention of 1850, 40, 187, 207; 
convention of 1901, 103-104, 112, 
189, 194; dismemberment of, 23, 
95, 217; fiii'st legislature of, 3. 

Voters {see Electors). 

Webster, Daniel, summary of 

fundamentals by, 24-25. 
West Virginia, admission to Union, 

22-23, 95, 217; convention of 

1863, 207. 
Wilson, Henry, in Massachusetts 

Convention, 1853, 102. 
Wisconsin, convention of 1847, 187. 



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